How Do Binary Triggers Work?
Binary triggers are a relatively recent innovation that is drawing attention as to how they may be classified under Pennsylvania, federal and local laws. The most common design is based on a semi-automatic rifle. When the trigger is pulled, one round is fired; when the trigger is released, another round is fired (provided there is a bullet in the chamber). The device is designed to allow for rapid fire . Essentially, the device doubles the firing rate of the shooter.
A binary trigger is dependent on the use of a semi-automatic firearm. Hence, the device cannot be used on an automatic weapon. Its popularity lies in its ability to double the firing rate of a gun that is already capable of semi-automatic firing. In other words, it is totally legal to have a binary trigger on a gun that already fires in a semi-automatic capacity.
Federal Law Governing Binary Triggers
In considering if it is legal to possess or use a binary trigger, it is important to examine federal laws. Specifically, in the context of firearms, federal law is comprised of laws created by Congress, judicial decisions interpreting those laws, and regulations from the various federal regulatory agencies.
The Gun Control Act of 1968, 18 U.S.C §§ 921 – 922, is the primary federal law that regulates the transfer and possession of firearms. The term "firearm" is broadly defined by the Act as: "…any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive." The term is further defined to include: 1) the frame or receiver of any weapon described above; 2) any firearm muffler or silencer; and 3) any explosive, incendiary, or poison gas weapon.
Based on the definitions, it could be argued that a binary trigger does not fall under the broad category of "firearm." Specifically, binary triggers do not by themselves fire a projectile or are not built into a frame or receiver of another firearm. However, binary triggers are not purely hardware. They also contain chemical components and use explosives. Chemical reactions, whether by igniting explosives or greatly compressing gas to heat it, create gasses that force a projectile down a barrel. While there is no reported case law to address these specific issues, it could be argued that a binary trigger is a firearm under the Act.
It is also important to consider how the Justice Department has interpreted the Act. The Bureau of Alcohol, Tobacco, and Firearms ("ATF"), which is a branch of the Justice Department, regulates firearms through its law enforcement authority and as the agency in charge of enforcing the Gun Control Act. Additionally, the ATF serves as both a regulatory and advisory agency to the public. ATF publications, such as Open Letters to All Federal Firearms Licensees, are used to clarify the legal requirements under federal law. As there are no specific federal regulations that address binary triggers, ATF Open Letters provide an insight on how ATF would consider the legality of binary triggers.
In 1993, ATF issued an Open Letter that addressed the legality of the muzzle loader shotgun, a type of shotgun that fires an arrow or bolt instead of a shot shell. The muzzle loader shotgun fires an arrow that is attached to a shotgun shell and is ignited by releasing a firing pin. ATF General Counsel found that the muzzle loader shotguns were not subject to regulation under the Gun Control Act. The reasoning given was that the device did not fire conventional ammunition or fire a projectile that is propelled at high velocity. ATF went on to state that although it has not been proven that conventional shot shells will not fire through the muzzle loader shotgun, the device clearly demonstrates that its ‘primary purpose is not to fire’ such shells. ATF concluded that the shotgun would not be considered a firearm so long as the muzzle loader shotgun was not designed or equipped to fire conventional shells or ammunition.
ATF stated that the legality of another firearm that is capable of firing conventional shells would depend on whether it was "marked to that effect." While ATF could have easily reached a conclusion that the muzzle loader shotgun was subject to regulation due to its ability to fire conventional ammunition, ATF determined that the specific use of the muzzle loader shotgun determined its status. Further, ATF determined that a shotgun would not be marked "if the same manufacturing process was used to make any similar shotgun — regardless of whether the manufacturer intended to design it for the purpose of shooting conventional shells."
ATF issued another Opinion in 2014 when it addressed the legality of the Fostech Echo trigger system. Fostech is a binary trigger that operates in the same manner as the Slide Fire products. While ATF has yet to issue new Open Letters regarding the legality of binray triggers, it could be argued that the ATF would similarly find 1) that a binary trigger is a firearm due to its ability to shoot high velocity projectiles at the moment of ignition; and 2) that a binary trigger is not marked if it is not clearly designed to be fired as a semi-automatic because the primary function is not to fire high velocity projectiles.
Pennsylvania’s Laws on Binary Triggers
Binary trigger systems are not readily listed in any statutes. Instead, binary triggers fall under general laws about machine guns. Pennsylvania law makes it illegal to own a machine gun, but current law makes it legal to currently possess a machine gun if the owner had already registered it in 1986. No government programs or processes govern the sale or transfer of new machine guns.
In a letter dated October 24, 2017, the Pennsylvania attorney general’s office interpreted the definition of a machine gun as it applies to binary triggers. The letter concluded that binary triggers are not machine guns as they do not meet the legal definition. In general, the Pennsylvania machine gun law defines a machine gun as "any gun which fires, is designed to fire, or can readily be restored to fire, automatically more than one shot, without manual reloading, by a single function of the trigger."
The attorney general’s opinion found that a binary trigger does not operate automatically. A binary trigger operates semi-automatically, as a shooter must first pull the trigger to get the first bullet out. Then, a second bullet is fired on release from the trigger. The opinion concluded that this is not an "automatic" function according to the standard definition of the term, which is "at once; instantly; directly; on the spot." The opinion also noted that the Bureau of Alcohol, Tobacco, and Firearms (BATF) does not consider binary triggers to be machine guns.
Several Pennsylvania firearms laws clarify some of the definitions about automatic weapons. None of these laws seem to apply to binary triggers, but they are worth including for clarification on the state’s machine gun laws: Although the BATF has chosen to exclude binary triggers from its definition of "firearm silencer," and the Pennsylvania attorney general has ruled that binary triggers are not machine guns, Pennsylvania remains a "shall-issue" state. This means that local law enforcement officers are granted wide discretion in interpreting laws and opinions. A local law enforcement officer may interpret a binary trigger differently from the attorney general, much like the officer in the Washington case where a local sheriff ruled that a binary trigger was a firearm silencer.
Binary triggers may not be legal based on anything other than the BATF’s opinion and the Pennsylvania attorney general’s opinion. Given the potentially disastrous consequences of felony charges for a binary trigger owner, most gun owners will want to avoid such a risk.
Consequences of Binary Triggers Ownership in Pennsylvania
Owning a binary trigger has practical implications, but firearm owners in Pennsylvania also need to understand them from a legal perspective given the recent changes in Pennsylvania law. For one, individuals who own such a firearm must be able to demonstrate that the binary trigger is legal to possess in Pennsylvania to law enforcement, should the circumstance arise. That being said, it is important for you to keep documentation of how you acquired the binary trigger. Without an adequate paper trail, you could run into issues with law enforcement.
Beyond this legal concern, Firearm owners must also consider that the new definition of "assault weapons" in Pennsylvania includes the binary trigger. As such, firearm owners who possess firearms that have "increase[d] the rate of fire of a semi-automatic firearm" will now be subject to regulations that require their firearms to be registered with the Pennsylvania State Police.
Another implication of owning a binary trigger is the fact that some dealers are proactively taking it upon themselves to stop selling the accessory in Pennsylvania. The decision of stores to stop selling binary triggers has further complicated sales of the accessory. Fortunately, those who currently own a binary trigger can keep the accessory in their possession even though it is now illegal to sell such accessories in the state.
Given the practical and legal implications of owning a binary trigger in Pennsylvania, it is highly advisable that firearm enthusiasts across Pennsylvania reach out to qualified Pennsylvania gun rights attorneys. Those who have questions about ownership or their options will be provided with valuable insight.
Recent Trends in Binary Trigger Legislation
Recently the Pennsylvania State Police posted an official advisory stating that for a "device [to] be legal, it must have a single pull of the trigger for each individual discharge." This means binary triggers would not be legal in the Commonwealth. However, the official advisory did not cite any specific statutes or regulations that would render a binary trigger illegal as there is no such law which explicitly makes binary triggers illegal.
In 2014, Jacob McGlennon was charged with possession, sale or transfer of firearms without a license pursuant to 18 Pa.C.S. § 6111(a), (b). McGlennon allegedly purchased a Remington R1 Government pistol with an adjustable competition trigger that allowed it to be fired either as a single-action pistol in which the hammer must first be cocked for each shot or as a double-action pistol in which a single trigger pull cocks the hammer and fires the gun in one motion. The trial court found that that the firearm itself was not eligible for licensing in Pennsylvania as the "word ‘automatic’ is also used in defining licensed firearms," i.e . a binary trigger would render an otherwise legal firearm, such as the Remington R1 Government pistol, illegal.
In an unpublished opinion, the Pennsylvania Commonwealth Court held that it was unclear whether the State Police’s decision to deny him a firearm purchase license based on the presence of an automatic trigger mechanism in his firearm was correct as the stated reasoning did not appear to be supported by the law. Because there was no explicit authority that would prohibit an "adjustable competition trigger system" within a firearm that is otherwise eligible for licensing, the Commonwealth Court held that the State Police’s denial of his application based on the presence of an adjustable competition trigger system was insufficient to establish that the weapon was prohibited in Pennsylvania. Notably, Judge lead the dissent and concluded that the individual was not eligible for a license to purchase a firearm as "his handgun possessed a binary trigger mechanism prohibited under 18 Pa.C.S. § 6111(g)(4) because it was capable of semi-automatic fire with a finger pull of the trigger and then one other "function."
Binary Trigger Laws in Other States
An increasing number of states have enacted legislation regarding the use of binary triggers, and these laws vary in their scope and stringency. Some states have chosen to set strict regulations to prohibit the sale of automatic rifles for safety reasons. Others have taken lenient approaches with no laws on the issue. Still others have established mixed legal frameworks.
California has very detailed laws surrounding the use of binary triggers. The state has imposed laws prohibiting the sale of certain types of automatic firearms. California’s laws – Penal Code §§ 30500, 30505, 30515, 30520, 30530, 30540 – prohibit the sale of automatic rifles, and its Department of Justice’s Bureau of Firearms has determined that at least some binary triggers are "multiburst trigger activators," which are similar to automatic weapons. Thus, as determined by California’s Bureau of Firearms, it is a violation of the law to sell these devices in the state.
New Jersey – like California – has imposed laws surrounding the use of binary triggers. In the state, manufacturing, selling or annually distributing or supplying any other "trigger or a trigger activation device for use with a semiautomatic firearm to increase the rate of fire of the firearm" is prohibited. This means that anyone without a state-issued permit could not possess, sell, manufacture or transfer a binary trigger in New Jersey.
Colorado’s laws regarding binary triggers are similar. The state does not specifically ban the sale of binary triggers in general, but it does place limits on the sale of certain automatic weapons. For example, the state prohibits the sale of universal parts that may be used on multiple weapons. Colorado’s law states: "it is unlawful for a person to sell, transfer, or cause to be transferred, at retail, a part for use in a firearm that is not identifiable as a result of an engraving, casting, molding, electro-etching, or other marking process."
A recent paper by New York Gun Club provides a summary of the laws of other states that surround the question of binary triggers. Some of those include:
New York: There is no current law in New York that bans the use of binary triggers at this time, although similar to the laws of other states, there are laws governing the use of automatic weapons.
Massachusetts: Similar to New York, Massachusetts has no laws on binary triggers at this time. However, it is illegal to manufacture a machine gun or sell an automatic weapon.
Ohio: Ohio’s laws currently do not ban the use of binary triggers. In Ohio, it is illegal to manufacture or possess an automatic weapon.
Legal Opinions on Binary Triggers
To better understand the nuances surrounding the legality and regulation of binary triggers, insights were gathered from firearms policy analysts and advocacy groups across the spectrum. These experts provided valuable perspectives on the issue, addressing the following key themes:
Protection Under the Second Amendment
The legality of binary triggers hinges in part on interpretations of the Second Amendment. Firearms policy experts agree that binary triggers, being attachments added to an already-functioning semi-automatic gun to increase the rate of fire, are protected under the Second Amendment.
Increased Rate of Fire
More widely regarded as a modificationish, advocates and experts alike maintain that due to their basic function as an attachment to a semi-automatic firearm, the legal and regulatory status of binary triggers should be similar to that of bump stocks.
Criminal Use
Lastly, industry experts and policy analysts continue to note that the majority of gun crimes in America, including mass shootings, are not committed with binary triggers or any attached accessory, thereby making regulation of these devices largely unnecessary.
Legal Compliance
For Pennsylvania residents to ensure full compliance with both state and federal laws, they should immediately discontinue use of any binary triggers in semiautomatic firearms. Pennsylvania law does not allow for the use or possession of any "machine gun" except those registered under federal law. Since binary triggers, by definition, change semiautomatic guns into fully automatic guns, they do not fall under the law’s exception .
Out of 50 states, this puts the Commonwealth of Pennsylvania as one of the top five most unfavorable locations for binary triggers and other bump fire devices after California, New York, New Jersey, and Hawaii.
Pennsylvania residents who are in the midst of the 120-day grace period (which ends on September 4, 2017) of ownership of a newly purchased binary trigger should stop use of the device immediately and begin arrangements for return, transfer, or disposal.