</PRE></P> </PRE> </PRE> ***************************************************************** FAQ ON NATIONAL FIREARMS ACT WEAPONS</PRE> Copyright by James O. Bardwell, 1994 - 2001. Permission is givento reproduce this document or portions thereof with attribution,for non-commercial, or non-governmental use only. No claim to U.S.statutes or regulations quoted herein. </PRE> </PRE> This is accurate, to the best of my knowledge, as of 12/30/2001.Nothing written here should be taken as legal advice. If you havea specific legal problem, you should talk to a lawyer. </PRE> </PRE> Table of Contents</PRE> General Info on NFA weapons What is An NFA Weapon Owning or Making an NFA Weapon Taxpayer Privacy Tax Exemptions Additional Regulation of Certain Weapons Transporting NFA Weapons A lost or stolen NFA firearm Repairs to NFA Weapons Penalties for NFA Violations </PRE> Obtaining the law enforcement certificationNFA weapons and the 4th amendmentNFA weapon amnestiesMachine gun sears and conversion partsDEWATsAny other weaponsDestructive devicesSound suppressors (Silencers)Short barreled riflesAppendix - State NFA restrictionsNote about CaliforniaNote about North Carolina</PRE> ATF Forms, compiled by Trenton Grale </PRE> </PRE> GENERAL INFO ON NFA WEAPONS </PRE> </PRE> Key to AbbreviationsAOW - any other weaponATF - Bureau of Alcohol, Tobacco and FirearmsATT - Alcohol and Tobacco Tax Division of the IRS, the pre-68administrators of the NFAC&R - curio and relicCFR - Code of Federal RegulationsDD - destructive deviceFET - federal excise taxFFL - federal firearms licenseGCA - Gun Control ActNFA - National Firearms ActSOT - special (occupational) taxpayerU.S.C. - United States CodeDEWAT - De-activated war trophy</PRE> What are NFA Weapons? </PRE> There are two kinds of firearms under U.S. (federal) law, title1 firearms and title 2. Title 1 firearms are long guns (rifles andshotguns), handguns, silencer, and firearm frames or receivers. Most NFA weapons are also title 1 firearms. Title 2 weapons areNFA weapons. Title 2 of the 1968 Gun Control Act is the NationalFirearms Act (codified at 26 U.S.C. sec. 5801 et seq.), hence NFA. Title 1 is generally called the Gun Control Act, (18 U.S.C. sec.921 et seq.). NFA weapons are also sometimes called class 3weapons, because a class 3 SOT (see below) is needed to deal in NFAweapons. </PRE> These weapons may also be further regulated by states orlocalities, and while these weapons can be legally owned underfederal law, some states and localities further regulate ownershipor prohibit it (see below). The NFA Branch of ATF administers thetaxation of the guns, and the registration of them in the NationalFirearms Registration and Transfer Record. </PRE> NFA weapons are: machine guns, sound suppressors (a.k.a.silencers), short barreled shotguns, short barreled rifles,destructive devices and "any other weapons". Exactly what theseweapons are is defined in the law, as well as in court casesinterpreting the law. Withut going into to much detail, these arewhat the categories encompass: </PRE> A machine gun is any gun that can fire more than one shot witha single pull of the trigger, or a receiver of a machine gun, or acombination of parts for assembling a machine gun, or a part or setof parts for converting a gun into a machine gun. </PRE> A silencer is any device for muffling the gunshot of a portablefirearm, or any part or parts exclusively designed or intended forsuch a device (see discussion below). </PRE> A short barreled shotgun is any shotgun (which is defined as ashoulder fired, smooth bore firearm) with a barrel of less than 18"or an overall length of less than 26", or any weapon made from ashotgun falling into the same length parameters. </PRE> A short barreled rifle is a rifle (which is defined as a shoulderfired, rifled bore firearm) with a barrel length of less than 16",or an overall length of less than 26", or any weapon made from arifle falling into the same length parameters (like a pistol madefrom a rifle). In measuring barrel length you do it from theclosed breech to the muzzle, see 27 CFR sec. 179.11. To measureoverall length do so along, "the distance between the extreme endsof the weapon measured along a line parallel to the center line ofthe bore." 27 CFR sec. 179.11. On a folding stock weapon youmeasure with the stock extended, provided the stock is not readilydetachable, and the weapon is meant to be fired from the shoulder. </PRE> A destructive device (DD) can be two basic categories of things. It can be an explosive, incendiary or poison gas weapon, like abomb or grenade. It can also be a firearm with a bore over 1/2",with exceptions for sporting shotguns, among other things (seediscussion below). I call the second category large boredestructive devices. As a general rule only this second categoryis commercially available. </PRE> Any other weapons (AOW's) are a number of things; smooth borepistols, any pistol with more than one grip, (but see below) gadgettype guns (cane gun, pen gun) and shoulder fired weapons with bothrifled and smooth bore barrels between 12" and 18", that must bemanually reloaded (see discussion below). </PRE> These definitions are simplified, to see if a specific gun is atitle 1 or 2 firearm one needs to refer to the specific definitionunder the statute(s), and possibly consult with the TechnologyBranch of ATF. There is also case law on the issue of whether aspecific item falls into one of these categories. In addition, asa general rule, a parts kit, i.e. all of the parts to assemble anNFA firearm, whether a parts kit is specifically included in thestatute or not, is usually considered to be the same as theassembled firearm.</PRE> Owning or making an NFA weapon I</PRE> t is illegal for anyone to have possession of an NFA weapon thatis not registered to them in the NFA Registry. It is also notpossible for anyone, except government entities, to register anexisting NFA weapon that is not registered, except within 24 hoursafter one is made by a class 2 NFA manufacturer. An individualotherwise able to own any gun under federal law can receive and ownany NFA weapon (local law permitting, ATF cannot approve a transfer where federal, state or local law would be violated by thetransferee possessing the weapon in question, see 26 U.S.C. sec.5812(a)(6)) on a Form 4, "Application for Tax Paid Transfer andRegistration of Firearm". Non-FFL holders may only purchase an NFAweapon from a dealer or individual within their own state. If theweapon is located out of state it must be transferred to a class 3dealer within the state, before transfer to the non FFL purchaser. C&R FFL holders (type 03) may purchase C&R NFA guns from out ofstate dealers and individuals. Type 01 FFL holders, who are notqualified to deal in nFA weapons, that is are not SOT taxpayers(see below) may purchase any fully transferrable (no dealersamples, see below) NFA weapon, from an out of state source. If theFFL holder is an individual he must submit fingerprints,photograph, and the law enforcement certification. </PRE> The transfer involves paying the transfer tax, which is $200 for all the NFA weapons, except AOW's for which the tax is a mere $5. Individuals also have to get one of several specified local chieflaw enforcement officers to sign the form (see below on the lawenforcement certification for more information), submit theirfingerprints in duplicate, and attach photos of the transferee tothe form. While the transfer tax is levied by law on thetransferor (seller), in practice the transferee (buyer) is expectedto pay the tax. Initial transfers to individuals tend to take atleast 4 months, although subsequent transfers can be quicker. </PRE> Or you can make any NFA weapon, except for machine guns (seebelow), by filing ATF Form 1, "Application to Make and Register aFirearm", and paying the $200 making tax, which applies to all ofthese weapons, including AOW's. You may not make the proposedweapon until the Form 1 is returned to you approved. The lawenforcement certification, photos and fingerprints also apply toForm 1's, and in fact to any transfer to an individual.Additionally the manufacturer of any NFA weapon, including anindividual making one on a Form 1 must mark the receiver of theweapon with the maker's name and city and state. NFA Branch cangrant exemptions from this for DD's. All types of corporations,including corporate type 01 FFL holders, need not do thecertification, photo and fingerprint requirements. Any of theforms listed, and the fingerprint cards, are available for freefrom ATF, either in Washington, D.C. or your local office. </PRE> The original of the paperwork should be kept in a safe place, Isuggest a safe deposit box. ATF can demand to see the form (seebelow on your 4th amendment rights). On a tax paid transfer, ATFputs a tax stamp, like a postage stamp (or like the one that causedthe American colonists to take up arms), on the document. Once itis used you cannot get another. ATF can supply a copy of the formshould you lose one, but is not unheard of for ATF to have norecord in their computer of a weapon registered to you. Having thepaperwork can avoid a lot of hassles. Every effort should be madeto not lose it. </PRE> Additionally, if the gun in question is a machine gun, not havingthe paperwork can lead to being charged with a violation of 18U.S.C. sec. 922(o), the ban on possessign machine guns made afterMay 19, 1986. All four of the federal circuit courts of appeals(U.S. v. Just, 74 F.3d 902 (CA8 1996), U.S. v. Gravenmeir, 121 F.3d526 (CA9 1997), U.S. v. Gonzales, 121 F.3d 928 (CA5 1997) and U.S.v. Franklyn, 157 F.3d 90 (CA2 1998)) that have addressed the issuehave ruled that sec. 922(o) prohibits possessing all machine guns,and it is an affirmative defense to such a charge that the weaponwas legally possessed before it took effect. It is up to thedefendant to prove an affirmative defense, although by a lowerevidentiary standard than the government needs to prove to show acriminal violation (usually preponderance of the evidence versusbeyond a reasonable doubt). It is not up to the government to provethe weapon was not registered, for a charge under sec. 922(o), atleast according to all the appeals courts that have considered thequestion. If you don't have the paperwork, and it isn't in ATF'scomputer, (it is likely they will check, even though they don'thave to prove non-registration, they don't want someone to wave aregistration form in their face during a trial) you can have aserious problem.</PRE> Taxpayer privacy </PRE> The transfer paperwork is nominally a tax return; the purpose ofthe registration, and the National Firearms Registration andTransfer Record (NFRTR or Registry) is keeping track of who owesthe tax. Taxpayer privacy laws apply to a transfer form, and ATFmay not discuss a pending transfer with anyone but the taxpayer.They sometimes claim that the taxpayer on a tax paid transfer isthe transferor (seller), as he is responsible for the tax by law.This also serves to allow ATF to refuse to discuss why a transferis taking so long with the party who is most interested in thatquestion, the transferee (buyer). However, in another context(releasing information under the Freedom of Information Act) ATFhas decided that as to a Form 4, the tax form is a joint returnbetween the transferor and transferee (see 1980 memo re AutoOrdnance Corp. FOIA request on my web page). The transferee shouldbe entitled to the information about the status of the applicationon the same basis as the transferor. That is not ATF's usualpractice, however with pending transfers. </PRE> These taxpayer privacy restrictions do not apply to disclosureof the form by other persons whio might have access to it, a localLE chief who provided the certification, for example, and retaineda copy of the form. Nor do they apply to a court ordereddisclosure by anyone who might have a copy (buyer or seller forexample), by subpoena or similar measure. </PRE> The NFA law also prohibits the use of Registry informationobtained from natural persons (only) for any law enforcementpurpose except prosecutions for making a false statement on atransfer form (26 U.S.C. sec. 5848). Other tax laws prohibit therelease of transfer information by the Feds, as a tax return,except for certain narrow law enforcement type circumstances. See26 U.S.C. sec. 6103. The Feds may not legally disclose whethersomeone has a registered NFA firearm, or not, to any state or locallaw enforcement agency or personnel. </PRE> However, as most NFA weapons are also regulated by the GCA,purchases from a dealer in NFA weapons requires the completion ofthe standard 4473 yellow form, as well as dealer bound bookrecords, and this source of information is not so similarlyrestricted. ATF may release this information to local lawenforcement for a host of law enforcement purposes. See 18 U.S.C.sec. 923(g)(1)(D).</PRE> Tax exemptions </PRE> Law enforcement, states, and local governments are totally exemptfrom the making and transfer (either to or from) taxes, but mustcomply with the registration requirements. While the NFA onlyspecifically provides that there is no transfer tax due when theU.S. government is the transferee, (26 U.S.C. sec. 5852(a)), or astate governmental entity (26 U.S.C. sec. 5853(a)), ATF has made upan exemption from the transfer tax where any U.S. or stategovernmental entity is the transferor, see ATF Chief CounselOpinion numbers 20023 and 20400. Opinion 20023 is on my web page - ATF refuses to release number 20400, claiming it is privilegedattorney-client work product. Abuses of this tax exemption, as intransferring guns through governmental entities so as to avoidtransfer taxes, have been successfully prosecuted. See U.S. v.Fleming, 19 F.3d 1325 (CA10 1994). </PRE> Federal government agencies, the military, and National Guard areexempt from the registration or tax requirements, and generallyspeaking NFA Branch removes weapons from transferrable status inthe Registry once they are transferred to the federal government. </PRE> There is no tax on transfers to anyone of a weapon that isunserviceable. Making a weapon unserviceable means it ispermanently altered so that it cannot work, and is not readilyrestorable. For example a gun can be made unserviceable by weldingthe chamber closed, and welding the barrel to the receiver orframe. An unserviceable weapon is sometimes called a DEWAT, forDE-activated WAr Trophy (see below). </PRE> There is no tax on a transfer to a lawful heir from the owner'sestate. Lawful heir just means someone named in a will to get theweapons, or a person entitled to inherit under the applicableintestacy laws if there was no will, or the will did not apply. The heir must be able to own the weapon under state and federallaws. The heir will have to do all the other steps of a transferto an individual, except that recently ATF has said they would notrequire the LE certification. Unless the heir is also a class 3SOT he may not inherit pre-86 NFA firearms or post-86 machine guns(and would also need the police demo letter for the post-86 machineguns, see below). A weapon to an heir may also be transferredinterstate directly to the heir, if need be; the gun need not betransferred to a dealer in the heir's state, if the deceased ownerresided in another state. </PRE> Special (Occupational) Taxpayers (SOT's) under the NFA are exemptfrom some of the making or transfer taxes. All SOT's may transferweapons between themselves tax free. However a transfer between anunlicensed individual and a SOT will require the tax. And unlessone has a class 2 SOT, there is a tax on making an NFA weapon,except for making by or on behalf of a government entity. Soleproprietor SOT's need not get the law enforcement certification forany transfer, except DD's (unless they have the appropriate FFL),even for their own personal collection, although in that case theyshould pay the $200 transfer tax. They also need not attach aphoto to the transfer paperwork, nor submit fingerprints. TheCrime Bill (effective 9/13/94) now requires these things with FFLapplications, and SOT applications, however, and ATF was requiringthem even before that became law, since early 1994. If one plansto engage in business in NFA weapons, one needs to be a SOT, justas one needs the FFL if they plan to engage in the business ofdealing, making, or importing regular firearms.</PRE> The classes of SOT holders: Class 1 - importer of NFA firearms 2 - manufacturer of NFA firearms 3 - dealer in NFA firearms </PRE> A class 1 or 2 SOT may also deal in NFA firearms. A class 3 SOTcosts $500 a year, due each July 1. A class 1 or 2 SOT costs $1000a year, except that SOT's who did less than $500,000 in grossreceipts in business the previous year qualify for a reduced rateof $500 per year, also due July 1. One must also have theappropriate FFL to engage in the specific activity, as well as theSOT. This is because most NFA weapons are also title 1 weapons, andthus both the law regulating title 1 weapons (the GCA) and title 2weapons (the NFA) must be complied with. As with the privacy ofRegistry information and transfer information, SOT status is alsoprotected tax information, and ATF will not release lists of SOTholders, as they will of FFL holders. </PRE> A Class 2 SOT can make, tax free, machine guns, silencers, shortrifles, short shotguns or AOWs. A Class 2 can also have weaponstransferred to him tax free, by other SOT's. He also has to havea type 07 or type 10 FFL. He does not need to ask prior permissionof ATF to make a weapon, he would notify ATF of its making within24 hours after its making by filing Form 2 with ATF. He could alsoimport foreign made NFA weapons, for R&D use. To import a machinegun (only) a Class 2 would need a letter from a governmental entityable to own the weapon requesting a demonstration. A weaponimported for R&D must be exported or destroyed when the R&D iscompleted, whereas a weapon imported for sale to a governmententity would be considered pre-86 dealer samples. To import forsale to government entities you need a Class 1 SOT. </PRE> A sole proprietor SOT may keep any NFA weapon he has aftersurrendering his SOT, as his personal property, except post-86machine guns, discussed below. If ATF thinks, based on the numberof weapons retained and the timing, that your SOT status was usedto evade the transfer taxes, they may demand transfer or makingtaxes on all or some of the guns. Conceivably you could also beprosecuted for tax evasion.</PRE> Additional regulations of certain weapons </PRE> Destructive devices are treated differently, in terms ofmanufacturing or dealing. One must have a special FFL, (type 9, 10or 11, to deal, make or import respectively) and be a SOT to makeone tax free or deal in them. But anyone can make them on a Form1, tax paid. </PRE> Machine guns are also treated differently. In 1986, as part ofthe Firearm Owners' Protection Act (FOPA), Congress prohibitedindividuals from owning machine guns, and made it an affirmativedefense that the machine gun was registered before the act tookeffect (which was 5/19/86). See 18 U.S.C. sec. 922(o) for the law.Thus as an individual you can only legally own a machine gun thatwas registered before that date. Any registered after that datecan only be owned by SOT's, law enforcement, and governmententities. A SOT may not keep these machine guns after surrenderinghis SOT. In order to transfer one of these machine guns, the SOTmust have a request from an agency able to own one for ademonstration. Or an order from one of those agencies to buy one. A class 2 SOT can make machine guns for research and developmentpurposes, or for sale to dealers as samples, or for sale togovernment entities. These are commonly called post-86 machineguns. </PRE> On top of the FOPA machine gun restrictions, any NFA weaponimported into the U.S. after the Gun Control Act took effect (endof 1968) cannot be transferred to an individual. See 26 U.S.C.sec. 5844. They can be transferred to SOT's, although without anywritten police demonstration request, and kept by the SOT aftersurrendering his SOT. These are sometimes called "pre-86 samples",or "dealer samples", although dealer sample can be used to refer toeither a post-86 machine gun or to any NFA weapon imported after1968.</PRE> Transporting NFA firearms </PRE> In terms of moving the weapons around, the following applies. If you are transporting the weapons within your state, it is wise,but not required, that you keep a photocopy of the registrationpaperwork, whatever it is, with the gun. Some states do requirethis, state law bans all or some NFA weapons, and exempts from theban only those possessed in compliance with federal law. In sucha state you need the federal paperwork to be legal under state law. If you were a SOT you should keep a copy of your proof of being anSOT with the paperwork when you move the guns around. But anindividual who surrenders his SOT can still have weapons that willbe registered on a Form 2 or Form 3 legally, so not having a copyof the SOT with such paperwork proves nothing. You need not askATF for permission when you move to a new address within the samestate, nor are you required to advise them of your new address. </PRE> To move weapons between states two rules apply. An individualmust get permission from ATF to move machine guns, short rifles,short shotguns or destructive devices between states (or totemporarily export them) before doing so. This includes takingthem somewhere to shoot them, or when permanently changingresidences. There is a form called a 5320.20, and ATF will alwaysapprove them, and fairly quickly, assuming the purpose (generallystated) for the movement is legitimate, and the destination stateallows the weapon in question. A licensed dealer can move weapons(except DD's) interstate at will, no permission is needed. Butwhile most states that otherwise prohibit some or all NFA weaponshave exceptions for SOT's, or FFL's, a few do not, and thus thedealer must make sure he will not be breaking any laws. Anunlicensed individual need not ask permission to move AOW's orsuppressor's interstate, again watch the laws at the target state. Having the approved 5320.20 form for a suppressor or AOW can avoidhassle while traveling. Lots of folks who think they knowsomething about the NFA don't know you only need permission forinterstate movement of some NFA weapons. ATF will approve a5320.20 for suppressors and AOW's; they will approve a 5320.20 foran FFL also, even if he doesn't need it by law. A C&R FFL holdercan move C&R NFA guns interstate without a 5320.20. See 18 U.S.C.sec. 922(a)(4) for the statute imposing the 5320.20 requirement.</PRE> A lost or stolen NFA firearm </PRE> A lost or stolen NFA firearm can be a real problem. It can bea very expensive loss, as well as endangering the continuedlawfulness of owning NFA firearms, both at a state and federallevel. Contrary to what you might hear, NFA firearms, machine gunsand silencers in particular, are very rarely used in crimes, compared to regular handguns, rifles and shotguns. A significantsource of NFA weapons used in crime are stolen firearms, from lawenforcement, the military and civilian collectors. A crime spreewith a stolen NFA firearm can lead to restrictive state or locallegislation, as well as local law enforcement refusing to continueproviding the law enforcement certification needed for transfers toindividuals. Safeguarding NFA firearms is not required, but seemsto me to be extremely prudent, both to preserve the firearm, aswell as its continued legal ownership. Reporting the theft of anNFA weapon to law enforcement is the only way to even have a chanceat recovering the gun, and preventing its use (or further use) incrime. I think reporting its theft is a good idea. Below is whatis required, as opposed to what is a good idea. </PRE> </PRE> </PRE> </PRE> ATF has made up a rule, 27 CFR sec. 179.141, that requires theowner of a lost or stolen NFA weapon to make a report "immediatelyupon discovery" to ATF including the name of the registered owner,kind of firearm, serial number, model, caliber, manufacturer, dateand place of theft or loss and "complete statement of facts andcircumstances surrounding such theft or loss." However Congresshas passed no law authorizing ATF to make such a requirement, andat a 1984 Congressional hearing then ATF Director Stephen Higginsadmitted there is no penalty for not complying. See "ArmorPiercing Ammunition and the Criminal Misuse and Availability ofMachineguns and Silencers", Hearings Before the Subcommittee onCrime of the Committee of the Judiciary House of Representatives,Ninety-Eighth Congress, Second Session, May 17, 24 and June 27,1984, Serial No. 153, G.P.O. 1986, page 129. </PRE> However, if one is a FFL holder, one is required by law to reportthe theft or loss to both local law enforcement and ATF. As partof P.L. 103-322 (Crime Bill) (effective 9/13/1994), 18 U.S.C. sec923(g) was amended to require, "(6) Each licensee shall report thetheft or loss of a firearm from the licensee's inventory orcollection within 48 hours after the theft or loss is discovered,to the Secretary and to the appropriate local authorities." </PRE> ATF has created interim rules to implement P.L. 103-322, and theyare a little more specific, and a little more onerous: 27 CFR Sec. 178.39a Reporting theft or loss of firearms. </PRE> Each licensee shall report the theft or loss of a firearm from the licensee's inventory (including any firearm which has been transferred from the licensee's inventory to a personal collection and held as a personal firearm for at least 1 year), or from the collection of a licensed collector, within 48 hours after the theft or loss is discovered. Licensees shall report thefts or losses by telephoning 1-800-800-3855 (nationwide toll free number) and by preparing ATF Form 3310.11, Federal Firearms Licensee Theft/Loss Report, in accordance with the instructions on the form. The original of the report shall be forwarded to the office specified thereon, and Copy 1 shall be retained by the licensee as part of the licensee's permanent records. Theft or loss of any firearm shall also be reported to the appropriate local authorities.</PRE> Sec. 178.129 Record retention. * * * * * </PRE> (b) Firearms transaction record, statement of intent to obtain a handgun, reports of multiple sales or other disposition of pistols and revolvers, and reports of theft or loss of firearms. * * * * * * </PRE> Licensees shall retain each copy of Form 3310.11 (Federal Firearms Licensee Theft/Loss Report) for a period of not less than 5 years after the date the theft or loss was reported to ATF.</PRE> This reporting requirement only applies to FFL holders, that isfolks licensed by ATF to make, sell, import or collect guns. Thisdoes not include folks who just own an NFA weapon.</PRE> Repairs to NFA weapons </PRE> While it is illegal for anyone to have possession of an NFAfirearm that is not registered to them, ATF haas carved out anexception for getting the guns repaired. In two writings ofgeneral circulation and availability, ATF has stated permissionfrom them is not required in this situation. In ATF's "FederalFirearms Regulations Reference Guide," ATF P 5300.4 (01-00), onpage 141, ATF writes: </PRE> "(I5) May a licensed gunsmith receive an NFA firearm for purposesof repair?" </PRE> "Yes, for the sole purpose of repair and subsequent return to itsowner. It is suggested that the owner receive permission from ATFfor the transfer by completing and mailing ATF Form 5 to the NFABranch and receive approval prior to the delivery. The gunsmith should do the same prior to returning the firearm." </PRE> "Only the face of the form need be completed in each instance. ATF Forms 5 may be obtained from the Bureau of ATF, NFA Branch,Washington, DC 20226, (202) 927-8330."</PRE> (Emphasis added). This discussion was present in past editions ofthis publication as well. </PRE> Recently, similar advice was added to ATF's Internet Web page,at http://www.atf.treas.gov/breakingnews/021800nfarepair.htm:</PRE> "Repair of NFA Firearms"</PRE> "February 18, 2000"</PRE> "The National Firearms Act (NFA) Branch has received numerousquestions concerning the repair of NFA firearms."</PRE> "The Bureau of Alcohol, Tobacco and Firearms (ATF) does notconsider the temporary conveyance of an NFA firearm to a gunsmithfor repair to be a "transfer" under the terms of the NFA. Thus, anATF Form 5 application is not required."</PRE> "PLEASE BE AWARE THAT OTHER DISPOSITIONS, SUCH AS DEMONSTRATION ORSALE, ARE TRANSFERS AS DEFINED IN THE NFA AND MUST BE COVERED BYAN APPROVED APPLICATION TO TRANSFER AND REGISTER. TRANSFERSWITHOUT APPROVAL ARE VIOLATIONS OF FEDERAL LAW. ANY FIREARMINVOLVED IS SUBJECT TO SEIZURE AND FORFEITURE AND THE PARTIES TOTHE TRANSFER ARE SUBJECT TO CRIMINAL PENALTIES OF UP TO 10 YEARSIMPRISONMENT."</PRE> "In order to avoid any appearance that a transfer has taken place,ATF strongly recommends that a Form 5 application be submitted forapproval prior to conveying the firearm for repair. ATF believesthis will provide protection to the parties involved as it willdocument the repair of the firearm and help ensure that a"transfer" did not take place. In addition, an approved Form 5will assist Federal firearms licensees in establishing that theirpossession of the firearm is lawful."</PRE> "Accordingly, Item I5 in the 'Questions and Answers' section of ATFPublication 5300.4, Federal Firearms Regulations Reference Guide2000, suggests that the owner obtain permission for the 'transfer'of the NFA firearm by submitting a Form 5 application and that thegunsmith do the same for the return of the firearm."</PRE> "Federal firearms licensees must record the acquisition anddisposition of the firearm as required by Part 179, Title 27, Codeof Federal Regulations." </PRE> One need not be an SOT to have NFA weapons transferred to him forrepair. One does need to have a type 01 FFL to work as a gunsmiththough. When submitting an optional Form 5 for repair, one checksthe "Other" box in item 1, type of transfer, writes in "repair"next to the box, and submits a letter detailing what is to be donewith teh transfer in general terms, e.g. "The purpose of thistransfer is to have [the weapon] refinished." The back of theform, with the certifications and photograph need not be completed. The turnaround time on Form 5's for this purpose seems to be atleast a few weeks, or a minimum wait of a month or two, to transferit to the 'smith and back. There is no transfer tax due.</PRE> Penalties for NFA violations </PRE> A conviction for a violation of the NFA will result in a felonyconviction, punishable by up to ten years in prison, and/or a$10,000 fine. See 26 U.S.C. sec. 5871. The U.S. SentencingGuidelines ordinarily require prison time, even for a first offensewith no prior criminal record, however various mitigating andaggravating factors can raise or lower the possible sentence rangefor a first offense. </PRE> The statute of limitations on violations of the NFA is threeyears. See 26 U.S.C. sec. 6531. The statute of limitations doesnot begin to run on possession offenses until the possession stops.As long as you possess the contraband item, you are in danger ofbeing prosecuted. </PRE> In addition any NFA weapon EVER transferred or registered inviolation of the Act is subject to civil forfeiture. See 26 U.S.C.sec. 5872. A forfeiture proceeding is separate from any criminalprosecution, and a resolution of a criminal proceeding in favor ofthe defendant will not preclude a forfeiture action. See U.S. v.One Assortment of Eighty-Nine Firearms, 465 U.S. 354 (1984). Whilethe GCA was amended in 1986 to legislatively repeal Eighty-NineFirearms (18 U.S.C. sec. 923(d)(1)), ATF has argued, and courtshave agreed, that the protections in the GCA as to forfeiture donot apply to forfeitures of NFA weapons. See, for example, U.S. v.One DLO Model A/C .30-06 Machine Gun, etc., 904 F.Supp. 622, n. 10(N.D. Ohio 1995). </PRE> A violation of 18 U.S.C. sec. 922(o) of the GCA can also bringup to a ten year prison sentence, and or a $10,000 fine. Again,prison time is likely, even on a first offense. Using a machinegun or a silencer in a crime of violence or drug crime can resultin a sentencing enhancement of thirty years, even if there is noNFA prosecution. See 18 U.S.C. sec. 924. A</PRE> dditional info sources </PRE> A good source of information is the ATF publication, "FederalFirearms Regulations Reference Guide" ATF P 5300.4 (01-00). Ithas a green cover, and contains the text of the GCA, NFA, and theregulations promulgated under those laws, as well as other usefulinformation. As required by the GCA (18 U.S.C. section921(a)(19)), ATF also publishes a compilation of state laws, "StateLaws and Published Ordinances-Firearms", ATF P 5300.5. Thecurrent edition is #22 - 2000. Both are free for the asking fromATF. To get forms, or the books, you can write to ATF DistributionCenter, P.O. Box 5950, Springfield, VA 22150-5950. Or phone them at(703) 455-7801. Your local ATF office may be able to supply themalso. </PRE> There is also a magazine covering NFA weapons, which also hasinformation on the legalities, Small Arms Review. See their webpage, http://www.smallarmsreview.com, or drop them a note atsareview@aol.com for more info. The author of this faq writes acolumn for the magazine, Legal Side, covering firearm laws andasnwering reader questions. </PRE> Some handy ATF phone numbers:NFA Branch (202) 927-8330 - This is the office that handles alltransfers of NFA weapons, and maintains the Registry.NFA Branch FAX (202) 927-8601 - You can fax Form 2's and 3's in,Form 5 transfers for repair, 5320.20's and probably others aswell. Check with NFA Branch to be sure your faxed form will beacceptable and see ATF Ruling 89-1.Technology Branch (202) 927-7910 - This is the office that makesall determinations as to whether something falls into one of theNFA categories, as well as determinations as to importability,and many other technical issues to things regulated by ATF (atleast as to firearms).Import Branch (202) 927-8320 - This office handles permits toimport firearms, parts and other related items regulated byfederal law. G</PRE> ETTING THE LAW ENFORCEMENT CERTIFICATION As noted above one administratively imposed requirement for anNFA transfer to an individual is a certification from a chief lawenforcement officer with jurisdiction over where you reside. This(and the cost of the gun) is what usually keep interested, andotherwise qualified, persons from obtaining one. This process iswhat the law and ATF regulations contemplate as the way to get asignoff, if you need one. </PRE> Step 1: You ask the following persons if they would sign; thelocal chief of police (if any), the local sheriff, the localdistrict (prosecuting) attorney, the chief of the state police, andthe state Attorney General. The CLEO can delegate the signingduty, for his convenience, if he wishes. Ask that they refuse inwriting, if that is what they will do. You may be surprised, onemight sign. That list of persons comes from 27 CFR sec. 179.85,which is the regulation that created the law enforcementcertification requirement for Form 4's. 27 CFR sec. 179.63 is thecompanion regulation for Form 1's. The rquirement is NOT in anystatute passed by Congress. Although not listed, and ATF will NOTdesignate federal officials as also acceptable (see below) otherpersons whose certification has been acceptable in the pastinclude; local U.S. Attorney's, local federal judges, local U.S.Marshals, and local supervising F.B.I. agents. Other localfederal law enforcement agents might also work. </PRE> It is helpful, in general, to quote the certification text forthe CLEO, or provide a copy of the form. That way they know whatyou are asking them to certify. For a Form 4 it reads, "I certifythat I am the chief law enforcement officer of the organization named below having jurisdiction in the area of residence of (nameof transferee). I have no information that the transferee will usethe firearm or device described on this application for other thanlawful purposes. I have no information indicating that the receiptand/or possession of the firearm described in item 4 of this formwould place the transferee in violation of State or local law." </PRE> Step 2: Copy the refusal letters, and send the copies to the NFABranch of ATF. Some CLEO's may refuse to even provide a responsein writing. Just indicating that the CLEO refused to sign, andalso refused to provide a written response, should be sufficient. Ask ATF to designate other persons whose signature would beacceptable, as the ones listed in the regulation would not sign. They are required to do this by the same regulation, it is the'safety valve' for when none of the designated persons will sign. ATF will almost certainly say that they will accept thecertification of a state judge who has jurisdiction over where youlive (same as the chief, D.A. and sheriff in step 1, they have tohave jurisdiction over where you live, although the regulationdoesn't say that, just the Form 4) and who is a judge of a court ofgeneral jurisdiction, that is a trial court that can (by law) hearany civil or criminal case. No limit as to dollar amount in civilcases, or type of crime in criminal cases. No small claims courtor traffic court type judges, in other words. Let's assume thejudges refuse. </PRE> Step 3: get back to ATF, Send them copies of the rejectionletters, if any, and ask that they accept a letter of policeclearance, or a police letter saying you have no criminalrecord/history with them, in lieu of the certification, togetherwith your certification that you are OK, and that the weapon wouldbe legal for you to have where you live. They will either respondOK, or with more persons to try. If you reach the point where theywill not accept the police clearance letter, and not designatesomeone who has not turned you down, you can sue, if thecertification is for a Form 1, or the transferor (seller) on a Form4 can sue. </PRE> There are several cases on this issue. The first is Steele v.NFA Branch, 755 F.2d 1410 (11th Cir. 1985), where the 11th circuitfederal appeals court said a person trying to transfer a gun to onewho was otherwise eligible to own the gun, but could not get thecertification from anyone acceptable to ATF, could sue to force thetransfer without it. In the Steele case (the plainitff was apotntial transferor in a Form 4 transfer) had not asked everyoneacceptable to ATF, as well as not alleged, as part of his case,that the potential transferee was otherwise eligible by law to ownthe weapon, and the case was disposed of on those grounds. Notethat the version of the regulation creating the certificationrequirement, reproduced in the footnotes of the Steele case, has adifferent list of acceptable persons. After some were named asdefendants in the Steele case (including the then U.S. Attorney forthe Miami, FL., area, Janet Reno, later anti-gun Attorney Generalduring the reign of Pres. Clinton), all the federal law enforcementofficials listed (U.S. Marshals and U.S. Attorney's) were removedfrom the regulation, supposedly at their request. See FederalRegister, October 15, 1985, 50 Fed.Reg. 41680. Correspondence fromATF indicates they will not designate any federal officials asother acceptable persons either. </PRE> The Steele decision was followed in the case Westfall v. Miller,77 F.3d 868 (5th Cir. 1996), in which a transferee, not transferor,sued over non-approval of a Form 4 without the certification. Again Westfall did not ask everyone listed in the regulation. Again his case was thrown out for lack of standing. The court saidthey could not tell if the reason he couldn't get the gun was anillegal requirement, the signoff, or his own failure to try and geta signoff. </PRE> This certification is not really a big deal for the chief lawenforcement officer (CLEO) making it, and it DOES NOT expresslymake the CLEO legally responsible for the weapon or your use of it,or its theft. I have not heard of any successful lawsuit against aCLEO for signing the certification for a gun that was criminallymisused. That is, in my opinion, a spurious excuse for notsigning. There is even one case addressing this issue that I amaware of, Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994). The estate of a drug dealer murdered by an off duty Dayton, Ohio,police officer with his personally owned "Mac-11" machine gun suedthe city that employed the cop. One of the grounds for suit wasthe police chief's having signed the transfer paperwork for themurder weapon. The court held that that claim should have beendismissed by the trial court. Without a showing by the plaintiffthat somehow the act of signing was negligent (under Ohio law) andled to the harm (murder) complained of, there was no cause ofaction. Signing the form was not negligent in itself, nor was ita reckless or wanton act, as the trial court claimed the plaintiffcould try to prove at trial. The case against the chief of policewas later dismissed by the trial court. Although this case is onlydirectly binding on federal courts in the area covered by the 6thcircuit, and need not bind any state courts, the court recognizedwhat common sense, and the certification say, the person signingdoes not open himself up to any liability by doing so. </PRE> The Searcy case is something to which you can point a CLEO whoclaims to refuse to do the signoff because of liability.Incidentally Stephen Halbrook, a leading lawyer in gun rightscases, and a longtime lawyer for the NRA, as well as an author,says in his Firearms Law Deskbook (published by Clark BoardmanCallaghan) that this case is the only instance of a registeredmachine gun being criminally misused by its registered owner he isaware of.O</PRE> ther Avenues to NFA Ownership </PRE> There are solutions to the law enforcement certification problem. They all require persistence, but less work than being a legitimateNFA dealer, in my opinion. Becoming a licensed dealer is onesolution though. Another solution is to be incorporated. If youare already the owner of a corporation, as part of your business(doctor, lawyer or architect for example) your corporation can buyNFA weapons, and the photo, police signoff and fingerprints are notneeded. Just a Form 4. The corporation might be buying weaponsfor an investment, or for security, or for another good reason. You could incorporate yourself just to get NFA weapons also,although you should talk to a lawyer or another knowledgeableperson about the downsides of being incorporated before just doingit, as well as any income or other tax consequences in yourlocation. As the weapons are registered to the company, and notthe owner of the company, they will have to be transferred out, taxpaid (unless the transfer is otherwise exempt from the tax, ie froma government entity, or for an unservicable weapon), if thecorporation is ever dissolved. As corporate assets, creditorsmight get them in the event of bankruptcy of the corporation, or ajudgment against the corporation. In my opinion the best thing isto have the weapons owned and registered to the person who actuallyowns them, and not an intermediary. I also am aware that in someareas of the country the incorporation route may be the only way toown NFA weapons, as a practical matter. Also be aware thatcorporations have no 4th amendment right against self-incrimination, and the restrictions the NFA law places on the useof information provided to ATF under the Act (26 U.S.C. sec. 5844)only apply to information provided by natural persons, notcorporations. You are giving up some of the privacy provided bylaw to flesh and blood people when you acquire your guns through acorporation. </PRE> </PRE> Pretending you live in a jurisdiction where the CLEO willsign, when you do not, may be tempting, but cannot be recommended.ATF has prosecuted for this, claiming that putting a bogus addresson the form is submitting false information to the feds, inviolation of 26 U.S.C. sec. 5861(l). See U.S. v. Muntean, 870F.Supp 261 (N.D.Ind. 1994), for a case of such a prosecution. However, it is possible to have more than one place you live, andit is permissible to obtain NFA weapons at an address, when you areactually living there. For example, if you have a summer home, youmay get NFA weapons when you are living there, and have the CLEOfor that place do the signoff. During the rest of the year, whenyou live elsewhere, you may obtain the weapons at the second home. </PRE> NFA WEAPONS AND THE 4TH AMENDMENT </PRE> As to surrendering your 4th amendment (search and seizure)rights, this is definitely true when one gets a Federal FirearmsLicense. The law allows the ATF to inspect your records andinventory once every 12 months without any cause, and at any pointduring the course of a bona fide criminal investigation (18 U.S.C.sec. 923(g)). They may inspect without warning during businesshours. The only modification of the above pertains to the C&R FFL(type 03) where ATF must schedule the inspection, (C&R FFL holdersdo not have business hours) and they must have the inspection attheir office nearest the C&R FFL holders premises, if the holder sorequests. ATF may look around the licensed premises for otherweapons not on your records. This means they take the positionthat if your licensed premises are your home they may search it, aspart of the annual compliance inspection. The constitutionality ofthe warrantless "administrative search" of licensees provided forin the Gun Control Act has been upheld by the US Supreme Court, seeU.S. v. Biswell, 406 U.S. 311 (1972). Biswell was partiallyoverturned by Congress by 1986 changes to the requirements for awarrant under the GCA, but the administrative search provisionsremain. </PRE> In addition, if one is also a SOT, ATF claims to have the rightto enter onto your business premises, during business hours, toverify compliance with the NFA. Their regulation to that effect isfound at 27 CFR sec. 179.22. The regulation is apparently basedupon 26 U.S.C. sec. 7606: </PRE> 7606. Entry of premises for examination of taxable objects. </PRE> (a) Entry during day. </PRE> The Secretary may enter, in the daytime, any building or place where any articles or objects subject to tax are made, produced, or kept, so far as it may be necessary for the purpose of examining said articles or objects. </PRE> (b) Entry at night. </PRE> When such premises are open at night, the Secretary may enter them while so open, in the performance of his official duties. </PRE> (c) Penalties </PRE> For penalty for refusal to permit entry or examination, see section 7342.</PRE> 26 U.S.C. sec. 7342 provides for the penalty for a refusal topermit entry under section 7606: </PRE> 7342. Penalty for refusal to permit entry or examination. </PRE> Any owner of any building or place, or person having the agency or superintendence of the same, who refuses to admit any officer or employee of the Treasury Department acting under the authority of section 7606 (relating to entry of premises for examination of taxable articles) or refuses to permit him to examine such article or articles, shall, for every such refusal, forfeit $500. </PRE> They claims this right extends to examining your businessrecords, and firearms. This would only apply to your NFA firearms,although they could presumably examine other guns to make sure theywere not NFA firearms, and subject to the law. This is not subjectto the controls found in the GCA, noted above, as the legal basisfor the search is not found there. So they could claim a right todo this sort of search once a month, or once a week. I am notaware of any current abuse of the authority under this section. While the regulation made by ATF only applies this authority toSOT's, the statute itself is not so limited. At least one courtcase has suggested this power is available to search an FFL holderwho is not an SOT. (U.S. v. Palmer, 435 F.2d 653 (1st Cir. 1970)). </PRE> As to one who is neither a FFL nor SOT, but only owns weapons regulated under the National Firearms Act, ATF may only compel youto show an agent upon request the registration paperwork, that isthe Form 1, 2, 3, 4, 5 or whatever else might have been used toregister the weapon. See 26 U.S.C. sec. 5841(e). They do not haveany right to compel you to produce the weapon. As always theFourth amendment applies, and ATF may not enter your home or otherplace of storage of the NFA weapon, nor seize the weapon, withouta warrant, or without falling under an exception the Supreme Courthas created to the operation of the Fourth amendment, or withoutyour consent. </PRE> AMNESTIES FOR UNREGISTERED NFA WEAPONS </PRE> As part of the new and revised 1968 National Firearms Act,there was one amnesty where folks could register any NFA weapons. Registration was done on ATF Form 4467. It went from 11/02/68 to12/01/68, although the paperwork backlog went on for a while after. ATF also permitted servicemen and other persons who could show theywere overseas during the amnesty period, and that the weapon theysought to register was in the U.S. during the amnesty period, toregister those weapons well after the amnesty period. The numberof firearms ATF reports as having been registered during the 1968amnesty goes up every year such statistics have been reported,since 1989 or so; however in 1975 ATF reported over 60,000 firearmsregistered during the amnesty, far more than they have reportedsince they began releasing annual statitstics on NFA registrations. According to 1995 numbers, 57,216 weapons were registered on Form4467 ("Registration of Certain Firearms during November of 1968"),which was the amnesty registration form. This would have includedweapons newly subject to registration, when they had not beenbefore, like DEWAT's and destructive devices, as well asunregistered firearms that should had always been subject to theNFA, and been registered before, and were not. </PRE> There was also a registration period after the enacting of thefirst NFA, from July 26, 1934 up to September 24, 1934. Anyone inpossession of an NFA weapon as of the July 26 date was supposed toregister it, even if they no longer had it, on Form 1 (Firearms) induplicate, with the local IRS office. No tax was due. This wasnot really an amnesty though, as the weapons were legal to havebefore the law was passed, at least under federal law. Before thechanges to the NFA in 1968, a Form 1 was for a flat outregistration of an existing gun, no tax. A Form 1A was for a taxpaid making, in the way we understand a Form 1 now. Under variousrules unregistered weapons were permitted to be registered, until1971 or so. </PRE> Some states had prohibited or regulated some NFA weapons before1934. In fact the Uniform Machinegun Act, which provided forregistration of machine guns, adopted in a few states (Conn., Va.,Md., Ark., Ohio and South Dakota) was developed with the support ofthe National Rifle Association, partly in an attempt to forestallthe sort of regulation the feds ultimately adopted in 1934. Asalways, compromise brings no relief - history has repeated thatlesson over and over in the gun control context. </PRE> Before the NFA was changed in 1968, as part of the Gun ControlAct of 1968, one could register unregistered existing weapons,however it meant you were admitting to possessing an unregisteredweapon. In fact the law required it, which was a reason the U.S.Supreme Court used in gutting the mandatory registration scheme ofthe pre-68 NFA in Haynes v. U.S., 390 U.S. 85 (1968). (It violatedthe 5th amendment right against compelling self-incrimination.) However if there was no criminal intent to the possession (whichtended to be demonstrated by attempting to register the weapon)then the Alcohol and Tobacco Tax Division of the Treasury Dept.would accept the application to transfer the weapon, or to registerit. ATT generally sent an investigator to check out what was goingon, and if deemed appropriate, to help the applicant fill out theForm 1. The Alcohol, Tobacco and Firearms Division of the IRS(created out of the '68 GCA, it became the Bureau of Alcohol,Tobacco and Firearms on July 1, 1972) continued this practice until1971, with the transferor instead of the transferee admitting topossessing an unregistered weapon, when applying to transfer it. </PRE> The U.S. Supreme Court, in the case U.S. v. Freed, 401 U.S. 601(1971), decided the amended NFA made existing unregistered weaponsunregisterable, even voluntarily. The provisions mandatingregistration of existing (illegally possessed) weapons were removedfrom the NFA in 1968, among other changes. The Secretary of theTreasury is authorized to conduct additional amnesties (Sec. 207(e)of P.L. 90-618, the 1968 Gun Control Act), at his discretion,provided each is not longer than 90 days, and are announced in theFederal Register. There has never been one. ATF officials havestated they will never declare another Amnesty, because it wouldsupposedly ruin all prosecutions in progress at the time, as wellas increase the number of NFA guns overnight, because people willmake guns that don't exist now, to register them. </PRE> In early 1994, ATF decided (in ATF Rulings 94-1 and 94-2) thatthree models of 12 gauge shotguns, the USAS 12, Striker 12, andStreet Sweeper, were destructive devices, owing to theirnon-sporting character, and having a bore over 1/2 inch, as all 12gauge shotguns do. ATF required owners of these guns to registerthem, as NFA weapons. This was not exactly an amnesty, as theweapons were not NFA weapons when made. This decision, as to theStriker 12 in particular, was upheld in a court challenge in thecase Demko v. U.S., 44 Fed.Cl. 83 (Ct.Cl. 1999). By ATF Ruling2001-1, ATF ended the amnesty for these shotguns as arbitrarily asit began, effective 5/1/2001. Any not registered now areunregisterable contraband. </PRE> In all likelihood 18 U.S.C. sec. 922(o), the ban on civilianpossession of machine guns registered after the law took effect, ornever registered, precludes an Amnesty (as provided for underexisting law) for machine guns. You could register a machine gunat a hypothetical amnesty, and comply with the NFA, but you wouldstill be in violation of sec. 922(o), because the gun would havebeen registered after that law took effect. The penalties are thesame under either law. One could register all other categories ofNFA guns at an Amnesty. Congress would probably need to pass a lawproviding for an Amnesty, and override sec. 922(o) in that manner. </PRE> MACHINE GUN SEARS AND CONVERSION PARTS </PRE> The definition of "machinegun" in the NFA (26 U.S.C. sec.5845(b)) includes a part or parts to convert a gun into a machinegun. These parts are called registered sears, as well as"conversion kits". </PRE> Note that conversion parts are not included in the definition of"firearm" under the Gun Control Act, one of the few things that isa firearm under the NFA, but not the GCA. Thus the purchaser of aconversion part from an FFL need not do a 4473 form, unlike otherNFA weapons. Of course the host gun, if purchased from an FFL,will require the 4473. This reading of the law is based on opinionletters from ATF, and the definition of "firearm" under the GCA,which requires it be able to expel a shot. However, at least onejudge has decided that somehow the definition of "firearm" in theGCA "incorporates" the definition of "machine gun" under the GCA(even though the law doesn't say that) and that a machine gunconversion part is a "firearm" under the GCA as well as the NFA. Ithink the judge is clearly wrong, even ATF reads the law betterthan that, but the point is to be careful. The case is U.S. v.Hunter, 843 F.Supp 235 (E.D. Mich. 1994), and see also the samejudge's second opinion in the same case, at 863 F.Supp. 462 (E.D.Mich. 1994). As the U.S. dropped that prosecution, and thedefendants were not convicted, there was no review of thatdetermination by an appeals court. </PRE> In every case, the conversion part(s) are installed into asemi-automatic gun, and without converting the semi-auto gun'sreceiver to machine gun specification, the new part(s) will allowthe gun to fire as a machine gun. If the registered conversionpart breaks or wears out it cannot be replaced, only repaired, ifpossible. BATF considers replacing it with a new part to be the newmanufacture of a machine gun, and a civilian could not own it, asit would have been made after the effective date of 18 U.S.C. sec.922(o). This wear/breakage thing is also true of the receiver ona gun where that is the registered part, but in general thereceiver is less subject to wear or breakage than a small part,like a sear. Being larger, a receiver may also be easier torepair. The sear conversion will most likely not be just like thefactory machine gun version; it will be working in the semi-autoversion of the gun. A registered receiver conversion can (andshould, but isn't always) be mechanically identical to the originalfull auto version of the gun, and factory spare parts may be used. Some sear conversions require altered parts, in addition to theregistered sear. </PRE> A conversion sear that does require alteration to the host gun'sreceiver is not legally a conversion part, and is not able to beregistered as such. Some were permitted by ATF, in particularAK-47 "sears" that required a hole be drilled in the gun'sreceiver, like a regular receiver conversion of the semi-auto AK.Such "sears" in the hands of innocent buyers were left on theRegistry, with the requirement that they were not to be removedfrom the host gun. However any in the possession of the personswho made and registered them were disallowed, and removed from theRegistry. See Vollmer v. Higgins, 23 F.3d 448 (D.C.Cir. 1994) formention of the AK sears. Also see FFL Newsletter, Summer Issue1988, Bureau of Alcohol, Tobacco and Firearms, page 2, Washington,D.C. </PRE> Some examples of conversion parts; a SWD Auto Connector (for ARrifles), an AR-15 drop-in auto sear, an HK sear, as made by FlemingFirearms, J.A. Ciener, and S&H Arms, among others, a AUG sear asmade by F.J. Vollmer and Qualified Manufacturing, an FN-FNC sear,as made by S&H, an M-2 conversion kit for the M-1 carbine,registered by many manufacturers, a slotted UZI machine gun bolt,made by Group Industries and many others, or a Ruger 10/22 triggerpack, as made by John Norell. There are also sears to convertGlock and Beretta 92 pistols into machine guns, but I believe allof them are post-86 manufacture, and thus unavailable to civilians. </PRE> As the sears do turn the host gun into a machine gun, the host gun is no longer regulated as a semi-auto, and is not subject to 18 U.S.C. sec. 922(v), (assault weapon law) or sec. 922(r) (ban ondomestic assembly from imported parts of an unsporting semi-autorifle or shotgun), for example. Thus you may put an HK sear in apost 1989 import ban SAR-8 rifle, for instance, and then put aregular pistol grip stock set on that otherwise thumbhole gun, as well as a regular slotted flash hider. The host gun need not even have been on the planet when the sear was made. As long as thesear is in there you may also have the barrel cut down to below 16inches; a machine gun is not also a short barreled rifle. </PRE> HOWEVER, if the sear is placed into a second gun, the first gunis no longer a machine gun, and must comply with the lawsregulating it as a semi-auto. In my example, the barrel must growback, and the thumbhole stock needs to return. If the sear inquestion is a AR-15 drop-in auto sear, the gun needs to have theM-16 internal parts needed for the sear removed as well, lest it beinduced to fire more than one shot at a time, as was done in theU.S. v. Staples case. </PRE> NFA Branch desires that folks who install sears into guns wherethe sear is not very accessible, HK guns in particular, tell themthe make, model and serial number of the gun into which the sear isinstalled, and put this information on the Form 4. This makes iteasier on anyone inspecting the gun, as they do not have to openthe gun up to see the sear, if they know that gun is the one withthe sear in it. This is called "marrying" the sear to the gun. Itis especially useful when the host semi-auto has been modified soas to make it potentially illegal without the sear, like putting ashoulder stock on an HK SP-89 pistol, or cutting the barrel of anHK-94 to less than 16 inches. You may "divorce" the two, but don'tdo that if the host gun will end up an unregistered short barreledrifle, or other unregistered NFA weapon. This marriage info is inbox 4(h) on the Form 4, so anyone who looks at the paperwork cansee the sear is in that gun; local law enforcement, for instance. </PRE> If the gun is a sear conversion you may not alter the receiverto full auto configuration, in particular you may not install apush pin lower on your HK. You may alter a push pin lower shell toaccommodate your clip-on trigger pack, so it looks authentic, butdon't alter the receiver. You may also alter one of the MG burstpacks to fit on your semi-auto receiver, provided it is alsomodified internally so it no longer just uses the MG trigger packwith the original MG trip. Making an unaltered MG trigger pack fitthe semi-auto is making a new conversion device; some registered HKconversion parts are MG trigger packs modified to fit right on thesemi-auto receiver. </PRE> This is an area with a variety of items registered; many in thefrenzy of registration after the 1986 making ban was being passedinto law, similar to the frenzy of making seen in 1994 duringCongressional deliberation on the ban on new manufacture of"semi-automatic assault weapons" for sale to civilians. </PRE> A few notes: before November, 1981, BATF did not consider thedrop-in AR-15 sear to be a machine gun in itself, because you hadto replace all the internal parts with M-16 parts, as well asinstall the sear, and thus it didn't convert the AR by itself.However in ATF Ruling 81-4, BATF changed its mind about what athing had to do in order to be a conversion part, grandfathered allAR sears made before the ruling, and decided all made after thatneeded to be registered. HOWEVER, the fact that the sear itself,if made before 11/81, and sold through ads in Shotgun News to thisday (they sure made a lot of 'em back then, or maybe not) is notrequired to be registered, DOES NOT mean you may install it in anAR-15, or even possess it with an AR-15 rifle, or with other M-16parts. Either scenario is considered a machine gun also, and alsosubject to the NFA, and sec. 922(o). Indeed one court has heldthat ATF's grandfathering is not effective, and that even a pre-81sear may not be sold or possessed after 11/81 without complyingwith all laws applicable to machine guns. </PRE> Likewise an M-1 carbine receiver and an M-2 carbine receiver areidentical, and all the parts to convert a gun from an M-1 to an M-2are available on the surplus market. HOWEVER having all the parts,and an M-1, or even just enough of the M-2 parts to get an M-1 tofire full auto as a kit, constitutes a machine gun under the NFA. </PRE> DEWATs </PRE> A DEWAT is an unserviceable gun that has an intact receiver,thus, as the GCA of 1968 is construed, it is a machine gun. In1955 the ATT decided that a gun that was a registered war souvenir(or for a time, a contraband unregistered gun) could be removedfrom the coverage of the NFA if it was rendered unserviceable bysteel welding the breech closed, and steel welding the barrel tothe frame. All this was to be done under the supervision of an ATTinspector. See Revenue Ruling 55-590. The gun became a wallhanger, ornament, like parts sets now. This was not the same as anunserviceable gun, which was still subject to the NFA, but exemptfrom the transfer tax. These steel welded guns were DEWAT's. DEWAT stands for DEactivated WAr Trophy; it was regularly done forservicemen who wished to bring home NFA weapons as war souvenirs. It was also done to WWI and WWII era guns imported as surplus bycompanies like ARMEX International, and Interarmco, and then soldthrough the mail in ads in gun magazines. The glory days before1968. A DEWAT must now be registered to be legal, there is nolonger a legal difference between a DEWAT and an unserviceableweapon. A few states only allow individuals to own DEWAT machineguns, Iowa and Kansas come to mind. </PRE> A DEWAT machine gun transfers tax free, as a "curio orornament", on a Form 5. To be a DEWAT, a gun should have a steelweld in the chamber, and have the plugged barrel steel welded tothe frame or receiver. Having said that, a gun may be registeredas unserviceable and not be de-activated in this manner. It mayhave cement or lead in the barrel, or a piece of rod welded,soldered or brazed in the barrel. Despite the repeated warningsfrom ATT, apparently DEWATs were made or imported that did not havesteel welds. And a weapon registered as "unserviceable" before1968 was not held to these standards. One (ostensible) reasonmachine gun receivers were redefined as machine guns in 1968, thusbringing DEWATs under the NFA regulation, was that folks wereregularly and easily making their DEWATs live guns w/o complyingwith the law. Some barrel plugs were so poor they would fall outwith little coaxing. </PRE> To re-activate the gun, ATF requires you file a fully completedForm 1 (ie you get the gun on a Form 5, including the lawenforcement certification, photo and fingerprints. You have to doall that again for the Form 1), and pay the $200 tax the gun wasexempt from before. Then when that is returned approved you caninstall a replacement barrel, or get the weld out of the barrel, ifpossible. In the alternative, a Class 2 manufacturer mayre-activate the gun, and file a Form 2 reflecting the gun is nowlive. ATF considers re-activating to be manufacturing, andrequires the re-activator to mark the gun with his name andaddress, whether done on a Form 1 or Form 2. If you sent yourDEWAT to a Class 2 to make live he would have to transfer it backto you on a fully completed Form 4, as a tax paid transfer. Theseprocedures are not in the NFA law nor the regulations. They areapparently based in part on the Revenue Rulings that created theDEWAT program in the 1950's. As a DEWAT was not a NFA firearm,before 1968, requiring the making tax made sense then as you weremaking a machine gun out of something that was the equivalent of adoor stop, legally. Now that is not true, the DEWAT is a machinegun, and no making tax should attach, as you are not "making"anything, merely changing the gun from unserviceable toserviceable.</PRE> Folks who are around NFA guns for very long will find there arestill a lot of DEWAT guns that were never registered during theAmnesty, and are now contraband unregistered machine guns. Folkshave them in closets, up over the mantle... The only safe courseis to abandon an unregistered NFA weapon to law enforcement. </PRE> ANY OTHER WEAPONS </PRE> An AOW is: "...any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12" or more, less than 18" in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any weapon which may be readily restored to fire. Such term shall not include a pistol or revolver having a rifled bore, or rifled bores, or weapons designed, made or intended to be fired from the shoulder and not capable of firing fixed ammunition." 26 U.S.C. sec. 5845(e).</PRE> Thus the question to be answered in deciding if a weapon is anAOW would be, does it fit into any of the three categories below:</PRE> 1) Is the weapon both not a pistol or revolver, and capable ofbeing concealed on the person?</PRE> 2) Or is it a smooth bore pistol or revolver? Examples of thisinclude the H&R Handy-Gun, or Ithaca Auto-Burglar gun. This doesnot include weapons made from a shotgun. That would be a shortbarreled shotgun. The receiver of a smooth bore pistol, in orderto be an AOW, must not have had a shoulder stock attached to it,ever. The shoulder stock attachment deal on a very few H&R HandyGuns, together with a stock, will make them into a short barreledshotgun.</PRE> 3) Or is it a combination gun, a shoulder fired gun with bothrifled and smooth barrels between 12" and 18" long, and which hasto be manually reloaded? Examples of this include the M-6 militarysurvival gun, with a single shot barrel in .22 Hornet, and a companion .410 shotgun barrel, as well as most models of theMarble's Game Getter.</PRE> Weapons that fit the first category above are commonly calledgadget guns; pen guns, stapler guns, cane guns, alarm clock guns,flashlight guns, the list of objects is pretty long. A few havebeen removed from the scope of the law because their collectorstatus makes them unlikely to be misused; original Nazi belt buckleguns for example. See the C&R list for these.</PRE> </PRE> ATF has made the decision that a handgun (but not a machine gun,since a machine gun is not also an AOW) with more than one handgrip at an angle tot eh bore is an AOW. This is based on the guna) being concealable on the person, and b) not meeting thedefinition of a "pistol" in the regulations promulgated under theNFA, since they say a pistol has a single grip at an angle to thebore. However, at least one federal magistrate has decided that ifthe grip is added later, the gun is not "originally designed" to befired by holding in more than one grip, and thus putting a secondgrip on a pistol does not make it an AOW. ATF does not regard thedecision as binding. The case is U.S. v. Davis, Crim No. 8:93-106(D.S.C. 1993) (Report of Magistrate, June 21, 1993). Theprosecution was dismissed at the request of the Government beforeany review of that determination by the trial judge. </PRE> By the same thinking ATF has decided that "wallet" holsters forsmall guns, from which the gun can be fired, and which disguisethe outline of the gun, are AOW's. This would affect, for example,the North American Arms mini-revolver and the wallet holster NAAused to sell for the gun, as an accessory. Or the wallet holsterGalco used to make for the Beretta model 21 pistol. ATF seems tobe thinking that the grip has disappeared, and thus it fits intothe first category. </PRE> In all likelihood, the wallet holster decision was an outgrowthof calling the combination of a briefcase from which the gun can befired, and the gun, an AOW. The cases were usually meant for theSMG version of the gun, which was fine, but could accomodate thesemi-auto pistol version of the MAC, or HK MP5K as well, and thatcombo of the case and semi-auto pistol was considered the AOW. </PRE> 27 CFR sec. 179.11 - "pistol. A weapon originally designed, made and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having: a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and b) a short stock designed to be gripped by one hand at an angle to and extending below the line of the bore(s). The term shall not include any gadget device, any gun altered or converted to resemble a pistol, any gun that fires more than one shot without manual reloading, by a single function of the trigger, or any small portable gun such as: Nazi belt buckle pistol, glove pistol, or a one-hand stock gun designed to fire fixed shotgun ammunition."</PRE> There is also a revolver definition, but it does not add anythingexcept a provision for guns with revolving cylinders, rather thanpermanent chambers. </PRE> Note that this definition is only in the rules for the NFA, andnot the GCA. It is designed to interact with the AOW definition. For example even though this definition excludes such things as the.410 T/C Contender pistol from the pistol definition, it is alsonot an AOW as it has a rifled bore. And it is also a handgun underthe GCA. The NFA statute does not define "pistol" or "revolver". </PRE> DESTRUCTIVE DEVICES </PRE> 26 U.S.C. sec. 5845(f) "The term destructive device means </PRE> 1) any explosive, incendiary or poison gas </PRE> A) bomb </PRE> B) grenade </PRE> C) rocket having propellant charge of more than four ounces </PRE> D) missile having an explosive or incendiary charge of more than one-quarter ounce </PRE> E) mine, or </PRE> </PRE> F) similar device 2) any type of weapon by whatever name known which will, or may be readily converted to, expel a projectile by the action of a explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary or his delegate finds is generally recognized as particularly suitable for sporting purposes; and 3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term 'destructive device' shall not include any device which is neither designed nor redesigned for use as a weapon; any device although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device; surplus ordnance sold, loaned or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685 or 4686 of title 10 of the United States Code; or any other device which the Secretary of the Treasury or his delegate finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes." </PRE> Secretary in the above refers to the Secretary of the Treasury,unless it says otherwise. The fee for the FFL to deal in DD's is$1000 a year (type 09), and one must also be a special taxpayer,add another $500 a year. Making them requires a different $1000 ayear FFL (type 10), although an individual may make them on a Form1, tax paid ($200). Transfers require the whole routine just likefull-autos; a form 4, $200 tax, a law enforcement sign-off,pictures and fingerprints. Most class 3 dealers don't have the$1000 a year FFL to deal in DD's. Note that antiques areexcluded. Thus the definition of an antique NFA firearm isimportant.</PRE> 26 U.S.C. sec. 5845(g) "Antique firearm.-The term 'antique firearm' means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replicas thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade." </PRE> Some examples of what is a DD and what is not: </PRE> Muzzle loading cannon - NOT, as it is an antique design, unlessit has some special features allowing breech loading. </PRE> Explosive grenade - is a DD </PRE> Molotov cocktail - is a DD </PRE> M-79 or M-203 40mm grenade launcher - is a DD </PRE> Smooth bore 37mm projectile launcher - not a DD. </PRE> Not even atitle 1 firearm. This item falls under the "not a weapon"(signaling device) exception. Generally a large bore device forwhich no anti-personnel ammo has ever been made will NOT be a DD. This used to be true of the 37mm guns. However, according to ATF,some folks have started making anti-personnel rounds for theseguns, and ATF has ruled that possession of a 37mm launcher and abean bag or rubber shot or similar round is possession of a DD, andat that point the launcher needs to be registered. Put anotherway, before you make or buy anti-personnel rounds for your 37mmlauncher, register it as a DD. The rounds themselves, not beingexplosive, incendiary or poison gas, are not regulated inthemselves either. It is just the two together. See ATF Ruling95-3. </PRE> 40mm grenade for an M-79 or M-203 - a DD. </PRE> Non-explosive 40mm practice ammo - not a DD. Commercial makingof it would require a type 10 FFL though, as although the ammo isnot itself classified as a DD, making ammo for a DD requires theFFL. </PRE> Non-sporting 12 gauge shotgun - is a DD, because it has abore over 1/2", and is not exempted unless it meets the "sportinguse" test. Check out the case Gilbert Equipment Co., Inc., v.Higgins, 709 F. Supp. 1071 (D. Ala. 1989) for how the sporting usetest has been re-interpreted from what it meant when the law wasenacted to having ATF be arbiters of what is "sport". </PRE> Flame Thrower - not a DD, nor even a firearm. Unregulatedas to possession, under federal law. Great way to clear snow offthe driveway. </PRE> Japanese Knee Mortar - A DD. Even though there is noavailable ammo for it, explosive or otherwise, and hasn't beensince 1945, because anti-personnel ammo was made for it in thepast, it is a weapon. As it has a bore over 1/2" and isn'tsporting, it is a DD. </PRE> FIREARM SILENCERS </PRE> While the statute calls these devices "silencers" or "mufflers",the US NFA industry term is "sound suppressor", as the wordsilencer has been given a negative connotation, and because it isinaccurate, as these devices do not eliminate all sound from firinga gun. However you can point the folks who get all high and mightyabout the use of the word "silencer" to this definition; it is the legal term. </PRE> 18 U.S.C. sec. 921(a)(24) "The term 'firearm silencer' or 'firearm muffler' means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication." </PRE> As can be seen this covers improvised sound suppressors, andcomponent parts of a sound suppressor. There is no thresh holdlevel of sound reduction for something to fall under thisdefinition. ATF used to require the device "appreciably" lower thesound (see Revenue Ruling 57-38) In general recoil compensators andflash hiders do not fall under this definition, but some designscould fall into the category. As with any borderline device thething to do is to get a written opinion from the Technology Branchof ATF. </PRE> Note that the silencer definition applies only to devices forfirearms, i.e. powered by an "explosive". An air gun silencer isnot covered. But if it can be used on a firearm it would be. Thusan airgun silencer permanently attached to the airgun, or tooflimsy to be used on a firearm, should be exempt. If you have aninterest in pursuing this line of thought submit a sample ordrawings to ATF Tech. Branch. I am not aware of any airgunsilencer currently made, or determined to be exempt from thisdefinition. But clearly there is room under the definition forsuch a gadget. Likewise, since antique guns, as defined in theGCA, are not "firearms", a silencer for such a gun is not, orshould not be, covered. Perhaps one fitted permanently to apre-1899 gun? </PRE> SHORT BARRELED RIFLES </PRE> A short barreled rifle (SBR) is defined in the law as: 26 U.S.C. sec. 5845(a) * * * * (3) a rifle having a barrel or barrels less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; * * * </PRE> The NFA law also defines "rifle": 26 U.S.C. sec. 5845(c) "The term 'rifle' means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned or made or remade to use the energy of an explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge. </PRE> Thus you can see why a machine gun is not also a short barreledrifle; it is not a rifle. And you can see why a barrel is notsubject to regulation, or registration, in itself. It is a barrel,it cannot discharge a shot. A receiver alone is also not a shortrifle; a short rifle is only a complete weapon that fits into thelength parameters outlined. </PRE> ATF takes the position that this definition includes anycombination of parts from which a short barreled rifle can beassembled. And they said this included a set of parts with dualuses. In the Supreme court case of U.S. v. Thompson/Center ArmsCo., 504 U.S. 505 (1992) ATF said a set consisting of a receiver,a 16"+ barrel, a pistol grip stock, a shoulder stock, and a barrelless than 16 inches long was a short barreled rifle. The idea ofthe kit was that you needed only one receiver, and you could haveboth a rifle and pistol in one gun. While making a pistol out of arifle is making a short rifle, ATF has approved of converting apistol into a rifle, and then converting it back into a pistol,without "making" a short barreled rifle when it is converted backinto a pistol; that was not an issue. See, for example RevenueRulings 59-340, 59-341 and 61-203. T/C made one set on a Form 1,then sued for a tax refund, claiming the set was not a SBR, unlessit actually was assembled with the shoulder stock, and shortbarrel, something they instructed the purchaser of the set not todo. The Supreme court disagreed with ATF, and agreed withThompson/Center. </PRE> The Court said that a set of parts was not a short barreledrifle, unless the only way to assemble the parts was into a shortbarreled rifle. As this set had a legitimate, legal, use for allthe parts it was OK. However they also approved of lower courtcases holding that the sale by one person, at the same place, ofall the parts to assemble an AR-15, with a short barrel, was saleof a SBR, even if they weren't assembled together at the moment ofthe bust, and had in fact never been assembled. See U.S. v.Drasen, 845 F.2d 731 (7th Cir. 1988). This was because the onlyuse for the parts in that case was a SBR. If the person in thatcase also had a registered M-16, then there would be a legitimateuse for the SMG barrel, and there shouldn't be a problem. And theCourt agreed, of course, that a fully assembled rifle with a barrelless than 16", or an overall length of less than 26" was alsosubject to registration. Although it was not addressed in thecase, the rule is that an otherwise short barreled rifle that isvery easily restored to firing condition (readily restorable);e.g., one missing a firing pin, but for that pin one may substitutea nail or other common object, is also subject to the law. </PRE> APPENDIX STATE NFA RESTRICTIONS </PRE> Here is my attempt to list what state allows what in terms ofNFA weapons. The "Y" indicates state law allows privateindividuals to own the weapon in question. Most of the "Y" statesrequire the weapons be possessed in compliance with federal law tobe legal under state law. Some of the "N" states may allow onlypolice officers to possess them, or dealers, or neither. Basicallyif the privileged class was so narrow, by statute, I said "N". Inmany states the class of folks able to own NFA weapons is narrow bypractice (California), or because no law enforcement officers willsign the certification needed for a transfer to an individual. Some of the "N" states may also have grandfathered weapons, the "N"applies to a current transaction. Some "N" states may also allowunserviceable weapons. Some states may regulate one or more ofthese weapons as handguns.</PRE> KEYMG - machine gunSI - sound suppressor (silencer)SR - short barreled rifleSG - short shotgunAOW - any other weaponLBDD - large bore destructive deviceEXPDD - explosive, incendiary or poison gas destructive device</PRE> STATEMG SI SR SG AOWLBDD EXPDD CommentsAK Y Y Y Y Y Y YAL Y Y N N Y Y ?AR Y Y Y Y Y Y ? (state registration of pistol cal. MG's over .30)AZ Y Y Y Y Y Y YCA Y N Y Y Y Y Y (requires discretionary and rarely issued permit for mg, lbdd or expdd from state Dept. of Justice; no AOW pen guns; C&R sg, sr only)CO Y Y Y Y Y Y Y (requires state explosives permit for expdd)CT Y Y Y Y Y Y ? (no select fire mg's-full auto's only, after 1993 assault weapon ban, state registration of mg's)DE N N Y N Y Y N (no smooth bore pistol AOW's)FL Y Y Y Y Y Y YGA Y Y Y Y Y Y Y (no incendiary expdd's)HI N N N N N N N IA N Y Y Y Y Y Y (only si, sr, sg, lbdd and expdd designated as collector's items by the Comm'r of Public Safety - they use the ATF C&R list)ID Y Y Y Y Y Y YIL N N N N Y ? NIN Y Y Y N Y Y NKS N N Y N Y Y N DEWAT machine guns are OK.KY Y Y Y Y Y Y ?LA Y Y Y Y Y Y Y (mg's require a permit to purchase - war relics only; mg's, sr, si, sg and some expdd's require a permit to purchase)MA Y N Y N N Y N (license for mg's required; 1998 law bans covert firearms (AOW's), short shotguns)MD Y Y Y Y Y Y N (mg's must be registered)ME Y Y Y Y Y Y YMI Y N Y Y Y Y Y (FFL needed to own machine guns; no incendiary expdd; C&R sr, sg only)MN Y N Y Y Y Y ? (C&R mg, sg only, registration required)MO Y N Y Y Y N N (C&R mg, sr, sg only to non-FFL holders; FFL holders (including C&R) any mg, sr, sg)MS Y Y Y Y Y Y Y (as of 7/1/00, silencers are legal, but must be registered with the state)MT Y Y Y Y Y N N (state law banning silencers and requiring pistol cal. mg's over .30 be registered with state repealed 4/23/99)NE Y Y Y Y Y Y NNC Y Y Y Y Y Y Y (sheriff's permit required for mg's; must be FFL holder (including C&R) for mg, si, sr, sg lbdd and expdd, or fall into another exception, see comments below)ND Y Y Y Y Y Y Y (fed. "licensees" required to register all NFA weapons with state when possessed for "protection or sale")NH Y Y Y Y Y Y YNJ Y N N N Y N N (mg requires discretionary and rarely issued permit from state court)NM Y Y Y Y Y Y YNV Y Y Y Y Y Y YNY N N N N Y Y N (AOW smooth bore handguns are allowed, on a state pistol license)OH Y Y Y Y Y Y YOK Y Y Y Y Y Y YOR Y Y Y Y Y Y Y (no incendiary expdd's)PA Y Y Y Y Y Y NRI N N N N Y Y ?SC Y Y Y Y Y Y ? In 2001, S.C. law was changed to permit all Federally registered items SD Y Y Y Y Y Y YTN Y Y Y Y Y Y ?TX Y Y Y Y Y Y YUT Y Y Y Y Y Y YVA Y Y Y Y Y Y Y (state registration of all mg's)VT Y N Y Y Y Y YWA N Y N N Y Y N (silencer may not be used on a gun)WI Y Y Y Y Y Y Y (permit required for expdd, no incendiary expdd's; no pistol caliber mg's w/o permit)WV Y Y Y Y Y Y ?WY Y Y Y Y Y Y ? ------------------------------------------------------------ </PRE> A Note about NFA Weapons and CaliforniaAs a general rule the definitions of NFA weapons, as regulated inCalifornia, track exactly the federal definitions, and categories.</PRE> Cal. Penal Code Sec. 12020(a) prohibits the possession of, amongother things, AOW's (Any other Weapons) and short shotguns andshort rifles. Subsection (b) lists exemptions to the application of(a).</PRE> Subsection (b)(7) of section 12020 exempts any "firearm orammunition" lawfully possessed under federal law and on the C&Rlist. Subsection (b)(8), exempts ALL AOW's except "pen guns."Subsection b(2) is the exemption for the movie permit for shortshotguns and short rifles with the procedure for its issuance foundat section 12095.</PRE> In short, Californians can legally possess any AOW, except a pengun, as long as it is possessed in compliance with federal law, andas long as it isn't classified as an assault weapon (SB 23 treatssome semiauto pistols with dual pistol grips, AOWs under federallaw, as prohibited assault weapons). Likewise they can possess anyC&R listed short rifle or short shotgun.</PRE> Short shotguns and short rifles are defined at (c)(1) and (c)(2)respectively; the definitions are essentially the same as federallaw. HOWEVER, unlike the feds, California courts have ruled thatthe length of a rifle with a folding stock is measured with thestock folded, not extended, as the feds do. So a gun that is nota short rifle under federal law may be one under California law. See People v. Rooney, 17 Cal.App.4th 1207 (1 Dist. 1993).</PRE> Any firearm whose possession is otherwise prohibited by subsection(a) is ok, under b(7), if the gun is a C&R one and lawfullypossessed under federal law. This would not provide an exemptionto the requirement for a state permit for a machine gun, as12020(a) does not regulate mg's. That is section 12220 (ban) and12230 et seq. (permits). Rules for DD's are at section 12301 etseq. Silencers are regulated at section 12500 et seq. The stateDepartment of Justice has discretionary authority to issue permitsto possess DD's or machine guns, and does not issue them tocollector-civilians. Civilians are totally prohibited from owningsilencers. </PRE> NORTH CAROLINA LAW ON NFA WEAPONS</PRE> North Carolina regulates machine guns in two areas of their law,both as machine guns, and lumped in to a category of all NFAweapons (and some other, non-NFA weapons as well), which they call"weapons of mass death and destruction". The respective statutorysections are 14-409, and 14-288.8.</PRE> In order to be exempted from the general ban on possessing "weaponsof mass death and destruction", found at section 14-288.8, you needto be either an FFL holder (including a collector's FFL, type 03),OR be one of apparently many "inventors, designers, ordnanceconsultants and researchers, chemists, physicists, and otherpersons lawfully engaged in pursuits designed to enlarge knowledgeor to facilitate the creation, development, or manufacture ofweapons of mass death and destruction intended for use in a mannerconsistant with the laws of United States and the State of NorthCarolina." While there are a few other exceptions, they do notapply to most people.</PRE> In addition to machine guns being regulated as weapons of massdeath and destruction, section 14-409 of the North Carolinastatutes regulates machine guns in particular. It says that it isillegal to have one, unless you fall one of into severalcategories:</PRE> 1. Banks, merchants and recognized businesses that have obtained a permit for the gun from their counties sheriff;</PRE> 2. persons in the U.S. military, while engaged in their duties;</PRE> 3. persons in the state militia, while engaged in their duties;</PRE> 4. peace officers, while engaged in their duties;</PRE> 5. "the manufacture, use or possession of such weapons forscientific or experimental purposes when such manufacture, use orpossession is lawful under federal laws and the weapon isregistered with a federal agency, and when a permit to manufacture,use or possess the weapon is issued by the sheriff of the county inwhich the weapon is located";</PRE> 6. persons who possessed such guns as a war souvenir before thelaw was passed may also keep them legally if they register themwith their sheriff.</PRE> </PRE> Since the laws suggests you need the "permit" after you acquire themachine gun, not before, ATF should not require proof of a statepermit that only applies after you take delivery to approve a form4. However, as of January, 2000, I understand that, after the N.C.A.G. got interested in this law and discussed it with NFA Branch,ATF is requiring proof of a permit before they will approve amachine gun transfer form, including a transfer to a dealer.</PRE> A permit from the sheriff of the county where the machine gun islcoated, in addition to the Form 4, is required to possess amachine gun legally, under the law. Arguably, possession of amachine gun under the permit is exception requires a permit fromany county where the machine gun is located, at any time, includingmoving the gun with your personal property from one residene toanother, or even transporting it. See the email from the A.G.'soffice, below, indicating in an informal opinion that no permit isneeded to move it through counties from place of purchase to itsplace of storage, although a permit is needed for where it will bestored, and if it is to ever be stored in a new county, a permitfrom the sheriff of that county will be needed.</PRE> The permit would be for "scientific or experimental" purposes,unless you fall into one of the other categories. However, yoursheriff may consider the approved Form 4 to be your "permit". Whether the D.A. would agree that a form 4 signed by the sheriff isa "permit" is another issue, and whether collecting and funshooting is possessing for scientific or experimental purposes isyet another issue. In addition, to comply with the "weapon of massdeath and destruction" statute you need to either have an FFL, orhave the gun for purposes listed as lawful in that statute.</PRE> Until the late 1980's North Carolina law defined any firearm whichwas set up to fire 31 or more rounds without reloading as a machinegun, regardless of whether it fired more than one shot with asingle pull of the trigger. See State v. Lee, 877 N.C. 242 (1970),for a discussion of the prior statute. Lee possessed an apparentlysemi-automatic Universal M-1 carbine with a 30 round magazine, andwas prosecuted, the prosecutor apparently counting 30 rounds in themagazine and one in the chamber to reach 31. This prior definitionexcluded some machine guns, since it was dependent soely onmagazine capacity, and as shown by the Lee case, included some gunswhich are not usually considered machine guns. As a result, manypersons have machine guns in N.C., for which they do not have apermit, and arguably do not qualify for a permit either - theydon't have the gun for the extremely limited reasons in the law. A push has started (1/2000) to get section 14-409 repealed, oramended to permit any Federally registered machine gun.</PRE> James H. Jeffries III, a attorney who practices firearms law inNorth Carolina and in various federal courts, offers theseadditional thoughts:</PRE> You may wish to point out that (1) where two statutesinconsistently address the same subject matter (e.g., thecollector's exception for weapons of mass death and destruction),the specific statute (the MG statute) will be deemed to prevailover the general; (2) the great bulk of MGs legally registered inNC occurred before 1989 when the statute defined a MG as anythingwith a 31-round capacity or greater, regardless of type of fire(it has now been amended to use the federal definition); (3) manyof the 100 NC sheriffs have no knowledge of the law and areconditioned by our pistol permit scheme to sign gun permits; (4)the NC AG's office for a long time was equally ignorant; (5) BATFcontinued to believe that NC is a MG state because many sheriff'scontinue to (erroneously) sign Forms 4 and 5; (6) some of the urbansheriffs and the state AG are beginning to wake up; (7) we have ageneral firearms forfeiture statute which makes seizable anyfirearm used (possessed) in violation of the law.</PRE> I refrained for years from disseminating this info because of thepotentially devastating effect on MG owners, but the word is nowout. I have advised NC clients for several years that purchasinga MG in NC is a risky proposition and that only legislation canchange the situation.</PRE> In addition, a correspondent sent me this email he received fromthe N.C. Attorney General's office on the permit requirement. While not formal guidance from that office, it ay help pooint N.C.residents in the right direction:</PRE> Subject: Fw: Response to Machine Gun QuestionsDate: Tue, 14 Dec 1999 21:18:02 -0500From: "Victor Au" <vicdoc@earthlink.net>To: <jbardwell@uswest.net></PRE> Mr. Bardwell,I have responses from the NC AGs office regarding thetransportation of MGs in NC, as well as the need for a permit wherethe MG (the machine gun owner) is "located". It would appear thatto transport the gun from one point to another across county linesdoes not require permits from each County Sheriff. However, whenyou move, you need a permit from the Sheriff where you move to, asyou have pointed out in previous posts. Thanks for your efforts onbehalf of NFA firearms owners.</PRE> Victor Au.----- Original Message -----From: Criminal Div. NC Dept of Justice<CRIMDIV@MAIL.JUS.STATE.NC.US>To: <vicdoc@nr.infi.net>Sent: Tuesday, December 14, 1999 7:01 PMSubject: Response to Machine Gun Questions</PRE> > Dear Mr. Au:>> </PRE> The Attorney General has received your inquiry via e-mail, and Iam happy to respond. As I understand your questions, you aretrying to resolve two (2) issues. First, you want to know if aperson lawfully entitled to possess a machine gun has to obtain apermit from the sheriff of each county through which the machinegun must pass in order to be transported from the place ofpurchase to the ultimate destination. Second, you have askedwhether or not a lawful machine gun owner has to obtain a permitfrom the sheriff of a county to which the machine gun owner hasmoved.>> </PRE> The relevant statute for purposes of evaluating the lawfulness ofthe possession of a machine gun is N.C. Gen. Stat. section 14-409. If you are going to attempt to possess a machine gun, I commendthis statute to you for your review. This statute also providesanswers to your two (2) questions.></PRE> > N.C. Gen. Stat. section 14-409 specifies that the statute'sprohibitions on the possession of a machine gun do not apply tocitizens who have properly acquired a permit to possess such aweapon. This statutory language speaks of the term "permit" in asingular manner. Thus, if a person properly possesses a permit forthe possession of a machine gun pursuant to the provisions of N.C.Gen. Stat. section 14-409, that person can lawfully transport themachine gun from the place of purchase to the weapon's ultimatedestination.>> </PRE> </PRE> An analysis of the language found in N.C. Gen. Stat. section14-409 is also instructive for purposes of answering your secondquestion. This statute requires a permit for the possession of amachine gun to be obtained from the sheriff of the county where themachine gun (machine gun owner) is located. Thus, if the lawfulowner of a machine gun takes the weapon to a different county, anew permit will have to be obtained from the sheriff of the countywhere the weapon is currently located.>> </PRE> I hope this information is helpful to you. If this response toyour inquiry is not satisfactory, please feel free to contact me bytelephone at (919) 716-6725.>> </PRE> Sincerely,> Jeffrey C. Sugg> Associate Attorney General> Law Enforcement Liaison Section></PRE> ATF Forms and Descriptions, by Category and Number==================================================================ATF Firearms Forms (in Numerical Order by Form)</PRE> This information is correct, to the best of my knowledge, as of 26June 1997. This compilation is copyright (c) 1995, 1996, 1997 byTrenton J. Grale. Permission is granted herein to copy anddistribute this document, in whole or in part, with attribution,for noncommercial and nongovernmental use only.[Note: My thanks to James O. Bardwell for corrections.]</PRE> Form Title------------- --------------------------------------------------------1 (5320.1 ) - Application to Make and Register a Firearm2 (5320.2 ) - Notice of Firearms Manufactured or Imported3 (5320.3 ) - Application for Tax-Exempt Transfer of Firearm and Registration to Special (Occupational) Taxpayer4 (5320.4 ) - Application for Tax Paid Transfer and Registration of Firearm5 (5320.5 ) - Application for Tax Exempt Transfer and Registration of a Firearm6 (5330.3A) - (Part I) Application and Permit for Importation of Firearms, Ammunition and Implements of War: Not for Use by Members of the United States Armed Forces6 (5330.3B) - (Part II) Application and Permit for Importation of Firearms (Military)6A (5330.3C) - Release and Receipt of Imported Firearms, Ammunition and Implements of War7 (5310.12) - Application for License7CR (5310.16) - Application for License (Collector of Curios and Relics)8 (5310.11) - Federal Firearms License9 (5320.9 ) - Application and Permit for Permanent Exportation of Firearms10 (5320.10) - Application for Registration of Firearms Acquired by Certain Governmental Entities11 - [OBSOLETE--Used to be return for SOT. See 5630.7.]3310.4 - Report of Multiple Sale or Other Disposition of Pistols and Revolvers3310.6 - Interstate Firearms Shipment Report of Theft/Loss3310.11 - FFL Theft/Loss Report3310.11A - FFL Theft/Loss Report (Continuation)4467 - Registration of Certain Firearms During November 19684473 (5300.9) - (Part I) Firearms Transaction Record--Over the Counter4473 (5300.9) - (Part II) Firearms Transaction Record--Non-over the Counter4473 (5300.24)- (Part I) (LV) Firearms Transaction Record Part I Low Volume--Over the Counter4473 (5300.24)- (Part II) (LV) Firearms Transaction Record Part II Low Volume--Non-over the Counter5300.34 - [OBSOLETE.] Questionnaire for Responsible Persons5300.35 - Statement of Intent to Obtain a Handgun(s)5300.36 - Notification of Intent to Apply for a Federal Firearms License5300.37 - [OBSOLETE.] Certification of Compliance with State and Local Law5300.38 - [Replaces 5300.34 and 5300.37.]5320.20 - Application to Transport Interstate or to Temporarily Export Certain National Firearms Act (NFA) Firearms5630.6A - Special Tax Stamp5630.7 - Special Tax Registration and Return: National Firearms Act (NFA)====================================================================================================================================</PRE> ATF Firearms Forms and Descriptions (by Category)This information is correct, to the best of my knowledge, as of 26 June1997. This compilation is copyright (c) 1995, 1996, 1997 by Trenton J.Grale. Permission is granted herein to copy and distribute thisdocument, in whole or in part, with attribution, for noncommercial andnongovernmental use only.</PRE> [Note: My thanks to James O. Bardwell for corrections.]National Firearms Act</PRE> Form Title------------- --------------------------------------------------------1 (5320.1 ) - Application to Make and Register a Firearm2 (5320.2 ) - Notice of Firearms Manufactured or Imported3 (5320.3 ) - Application for Tax-Exempt Transfer of Firearm and Registration to Special (Occupational) Taxpayer4 (5320.4 ) - Application for Tax Paid Transfer and Registration of Firearm5 (5320.5 ) - Application for Tax Exempt Transfer and Registration of a Firearm9 (5320.9 ) - Application and Permit for Permanent Exportation of Firearms10 (5320.10) - Application for Registration of Firearms Acquired by Certain Governmental Entities11 - [OBSOLETE--Used to be return for SOT. See 5630.7]4467 - Registration of Certain Firearms During November 19685320.20 - Application to Transport Interstate or to Temporarily Export Certain National Firearms Act (NFA) Firearms5630.6A - Special Tax Stamp5630.7 - Special Tax Registration and Return: National Firearms Act (NFA)</PRE> Title I TransfersForm Title------------- --------------------------------------------------------3310.4 - Report of Multiple Sale or Other Disposition of Pistols and Revolvers4473 (5300.9) - (Part I) Firearms Transaction Record--Over the Counter4473 (5300.9) - (Part II) Firearms Transaction Record--Non-over the Counter4473 (5300.24)- (Part I) (LV) Firearms Transaction Record Part I Low Volume--Over the Counter4473 (5300.24)- (Part II) (LV) Firearms Transaction Record Part II Low Volume--Non-over the Counter5300.35 - Statement of Intent to Obtain a Handgun(s)</PRE> Federal Firearms Licensees</PRE> Form Title------------- --------------------------------------------------------7 (5310.12) - Application for License7CR (5310.16) - Application for License (Collector of Curios and Relics)8 (5310.11) - Federal Firearms License3310.6 - Interstate Firearms Shipment Report of Theft/Loss3310.11 - FFL Theft/Loss Report3310.11A - FFL Theft/Loss Report (Continuation)5300.34 - [OBSOLETE.] Questionnaire for Responsible Persons5300.36 - Notification of Intent to Apply for a Federal Firearms License5300.37 - [OBSOLETE.] Certification of Compliance with State and Local Law5300.38 - [Replaces 5300.34 and 5300.37.]Export/Import</PRE> Form Title------------- --------------------------------------------------------6 (5330.3A) - (Part I) Application and Permit for Importation of Firearms, Ammunition and Implements of War: Not for Use by Members of the United States Armed Forces6 (5330.3B) - (Part II) Application and Permit for Importation of Firearms (Military)6A (5330.3C) - Release and Receipt of Imported Firearms, Ammunition and Implements of War9 (5320.9 ) - Application and Permit for Permanent Exportation of Firearms [NFA]5320.20 - Application to Transport Interstate or to Temporarily Export Certain National Firearms Act (NFA) Firearms======================================================================================================================================</PRE> Federal Firearms Licenses and Special (Occupational) Tax StampsThis information is correct, to the best of my knowledge, as of 26 June1997. This compilation is copyright (c) 1995, 1996, 1997 by Trenton J.Grale. Permission is granted herein to copy and distribute thisdocument, in whole or in part, with attribution, for noncommercial andnongovernmental use only.</PRE> Federal Firearms Licenses: Types, Fees, and DescriptionsAll fees are for a 3-year license.</PRE> Type FeeDescription---- ----- ----------------------------------------------------------01 $200/ - Dealer, Including Pawnbroker, in Firearms Other than $90 Destructive Devices [Note: $200 for initial license; $90 for subsequent renewals.]03 $30 - Collector of Curios and Relics06 $30 - Manufacturer of Ammunition for Firearms Other than Ammunition for Destructive Devices or Armor Piercing Ammunition07 $150 - Manufacturer of Firearms other than Destructive Devices08 $150 - Importer of Firearms other than Destructive Devices or Ammunition for Firearms other than Destructive Devices, or Ammunition other than Armor Piercing Ammunition09 $3000 - Dealer in Destructive Devices10 $3000 - Manufacturer of Destructive Devices, Ammunition for Destructive Devices or Armor Piercing Ammunition11 $3000 - Importer of Destructive Devices, Ammunition for Destructive Devices or Armor Piercing Ammunition</PRE> Special (Occupational) Taxes: Classes, Taxes, and Descriptions</PRE> All taxes are for a 1-year tax period beginning July 1.</PRE> Class TaxDescription----- ----- ---------------------------------------------------------1 $1000 - Importer of Firearms $ 500 - Importer of Firearms (Reduced) [$500,000 or less]2 $1000 - Manufacturer of Firearms $ 500 - Manufacturer of Firearms (Reduced) [$500,000 or less]3 $ 500 - Dealer in Firearms</PRE> Table of Required FFLs and SOT Stamps</PRE> Required federal firearms license types and special (occupational) taxclasses related to collecting, dealing, manufacturing, and importingfirearms. A manufacturer may also operate as a dealer without paymentof additional fees. An importer may also operate as a dealer withoutpayment of additional fees. A collector's license is not required, butdoes allow a licensed collector to receive curio and relic (C&R)firearms directly interstate. Collector Dealer Manufacturer Importer ========= ======== ============ ======== FFL SOT FFL SOT FFL SOT FFL SOT ---- --- --- --- --- --- --- ---</PRE> Title I firearms (03) - 01 - 07 - 08 -NFA firearms except DDs (03) - 01 3 07 2 08 1Destructive Devices (03) - 09 3 10 2 11 1Ammunition - - - - 06 - 08 -Armor piercing ammunition - - 01 - 10 - 11 -Ammunition for DDs - 01 - 10 - 11 -===================================================================End-of-Document</PRE>
