Section 2
Copyright by James O. Bardwell, 1994 - 2001. Permission is given to 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. 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 have a specific legal problem, you should talk to a lawyer.
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 machine gun.
These parts are called registered sears, as well as "conversion kits". Note that conversion parts are not included in the
definition of "firearm" under the Gun Control Act, one of the few things that is a firearm under the NFA, but not the GCA.
Thus the purchaser of a conversion part from an FFL need not do a 4473 form, unlike other NFA weapons. Of course the host
gun, if purchased from an FFL, will require the 4473. This reading of the law is based on opinion letters from ATF, and the
definition of "firearm" under the GCA, which requires it be able to expel a shot. However, at least one judge has decided
that somehow the definition of "firearm" in the GCA "incorporates" the definition of "machine gun" under the GCA (even though
the law doesn't say that) and that a machine gun conversion part is a "firearm" under the GCA as well as the NFA. I think
the judge is clearly wrong, even ATF reads the law better than 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 same judge's second opinion in the same case, at 863 F.Supp.
462 (E.D. Mich. 1994). As the U.S. dropped that prosecution, and the defendants were not convicted, there was no review of
that determination by an appeals court. In every case, the conversion part(s) are installed into a semi-automatic gun, and
without converting the semi-auto gun's receiver to machine gun specification, the new part(s) will allow the gun to fire as
a machine gun. If the registered conversion part breaks or wears out it cannot be replaced, only repaired, if possible. BATF
considers replacing it with a new part to be the new manufacture of a machine gun, and a civilian could not own it, as it
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
on a gun where that is the registered part, but in general the receiver is less subject to wear or breakage than a small part,
like a sear. Being larger, a receiver may also be easier to repair. The sear conversion will most likely not be just like
the factory machine gun version; it will be working in the semi-auto version of the gun.
A registered receiver conversion
can (and should, but isn't always) be mechanically identical to the original full auto version of the gun, and factory spare
parts may be used. Some sear conversions require altered parts, in addition to the registered sear. A conversion sear that
does require alteration to the host gun's receiver is not legally a conversion part, and is not able to be registered as such.
Some were permitted by ATF, in particular AK-47 "sears" that required a hole be drilled in the gun's receiver, like a regular
receiver conversion of the semi-auto AK. Such "sears" in the hands of innocent buyers were left on the Registry, with the
requirement that they were not to be removed from the host gun. However any in the possession of the persons who made and
registered them were disallowed, and removed from the Registry. See Vollmer v. Higgins, 23 F.3d 448 (D.C.Cir. 1994) for mention
of the AK sears.
Also see FFL Newsletter, Summer Issue 1988, Bureau of Alcohol, Tobacco and Firearms, page 2, Washington,
D.C. Some examples of conversion parts; a SWD Auto Connector (for AR rifles), an AR-15 drop-in auto sear, an HK sear, as made
by Fleming Firearms, J.A. Ciener, and S&H Arms, among others, a AUG sear as made 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 trigger pack, as made by John Norell.
There
are also sears to convert Glock and Beretta 92 pistols into machine guns, but I believe all of them are post-86 manufacture,
and thus unavailable to civilians. 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 on domestic assembly
from imported parts of an unsporting semi-auto rifle or shotgun), for example. Thus you may put an HK sear in a post 1989
import ban SAR-8 rifle, for instance, and then put a regular 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 the
sear is in there you may also have the barrel cut down to below 16 inches; a machine gun is not also a short barreled rifle.
HOWEVER, if the sear is placed into a second gun, the first gun is no longer a machine gun, and must comply with the laws
regulating it as a semi-auto.
In my example, the barrel must grow back, and the thumb hole stock needs to return.
If the sear in question is a AR-15 drop-in auto sear, the gun needs to have the M-16 internal parts needed for the sear removed
as well, lest it be induced to fire more than one shot at a time, as was done in the U.S. v. Staples case. NFA Branch desires
that folks who install sears into guns where the sear is not very accessible, HK guns in particular, tell them the make, model
and serial number of the gun into which the sear is installed, and put this information on the Form 4. This makes it easier
on anyone inspecting the gun, as they do not have to open the gun up to see the sear, if they know that gun is the one with
the sear in it. This is called "marrying" the sear to the gun. It is especially useful when the host semi-auto has been modified
so as to make it potentially illegal without the sear, like putting a shoulder stock on an HK SP-89 pistol, or cutting the
barrel of an HK-94 to less than 16 inches. You may "divorce" the two, but don't do that if the host gun will end up an unregistered
short barreled rifle, or other unregistered NFA weapon.
This marriage info is in box 4(h) on the Form 4, so anyone
who looks at the paperwork can see the sear is in that gun; local law enforcement, for instance. If the gun is a sear conversion
you may not alter the receiver to full auto configuration, in particular you may not install a push pin lower on your HK.
You may alter a push pin lower shell to accommodate your clip-on trigger pack, so it looks authentic, but don't alter the
receiver. You may also alter one of the MG burst packs to fit on your semi-auto receiver, provided it is also modified internally
so it no longer just uses the MG trigger pack with the original MG trip. Making an unaltered MG trigger pack fit the semi-auto
is making a new conversion device; some registered HK conversion parts are MG trigger packs modified to fit right on the semi-auto
receiver. This is an area with a variety of items registered; many in the frenzy of registration after the 1986 making ban
was being passed into law, similar to the frenzy of making seen in 1994 during Congressional deliberation on the ban on new
manufacture of "semi-automatic assault weapons" for sale to civilians.
A few notes: before November, 1981, BATF did
not consider the drop-in AR-15 sear to be a machine gun in itself, because you had to replace all the internal parts with
M-16 parts, as well as install the sear, and thus it didn't convert the AR by itself. However in ATF Ruling 81-4, BATF changed
its mind about what a thing had to do in order to be a conversion part, grandfathered all AR sears made before the ruling,
and decided all made after that needed to be registered. HOWEVER, the fact that the sear itself, if made before 11/81, and
sold through ads in Shotgun News to this day (they sure made a lot of 'em back then, or maybe not) is not required to be registered,
DOES NOT mean you may install it in an AR-15, or even possess it with an AR-15 rifle, or with other M-16 parts. Either scenario
is considered a machine gun also, and also subject to the NFA, and sec. 922(o).
Indeed one court has held that ATF's
grand-fathering is not effective, and that even a pre-81 sear may not be sold or possessed after 11/81 without complying with
all laws applicable to machine guns. Likewise an M-1 carbine receiver and an M-2 carbine receiver are identical, and all the
parts to convert a gun from an M-1 to an M-2 are 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 to fire full auto as a kit, constitutes a machine gun under the NFA.
A DEWAT is an unserviceable gun that has an intact receiver, thus, as the GCA of 1968 is construed, it is a machine
gun. In 1955 the ATT decided that a gun that was a registered war souvenir (or for a time, a contraband unregistered gun)
could be removed from the coverage of the NFA if it was rendered unserviceable by steel welding the breech closed, and steel
welding the barrel to the frame. All this was to be done under the supervision of an ATT inspector. See Revenue Ruling 55-590.
The gun became a wall hanger, ornament, like parts sets now. This was not the same as an unserviceable gun, which was still
subject to the NFA, but exempt from the transfer tax. These steel welded guns were DEWAT's. DEWAT stands for DEactivated WAr
Trophy; it was regularly done for servicemen who wished to bring home NFA weapons as war souvenirs. It was also done to WWI
and WWII era guns imported as surplus by companies like ARMEX International, and Interarmco, and then sold through the mail
in ads in gun magazines. The glory days before 1968.
A DEWAT must now be registered to be legal, there is no longer
a legal difference between a DEWAT and an unserviceable weapon. A few states only allow individuals to own DEWAT machine guns,
Iowa and Kansas come to mind. A DEWAT machine gun transfers tax free, as a "curio or ornament", on a Form 5. To be a DEWAT,
a gun should have a steel weld in the chamber, and have the plugged barrel steel welded to the frame or receiver. Having said
that, a gun may be registered as unserviceable and not be de-activated in this manner. It may have cement or lead in the barrel,
or a piece of rod welded, soldered or brazed in the barrel. Despite the repeated warnings from ATT, apparently DEWATs were
made or imported that did not have steel welds. And a weapon registered as "unserviceable" before 1968 was not held to these
standards. One (ostensible) reason machine gun receivers were redefined as machine guns in 1968, thus bringing DEWATs under
the NFA regulation, was that folks were regularly and easily making their DEWATs live guns w/o complying with the law.
Some
barrel plugs were so poor they would fall out with little coaxing. To re-activate the gun, ATF requires you file a fully completed
Form 1 (ie you get the gun on a Form 5, including the law enforcement certification, photo and fingerprints. You have to do
all that again for the Form 1), and pay the $200 tax the gun was exempt from before. Then when that is returned approved you
can install a replacement barrel, or get the weld out of the barrel, if possible. In the alternative, a Class 2 manufacturer
may re-activate the gun, and file a Form 2 reflecting the gun is now live. ATF considers re-activating to be manufacturing,
and requires the re-activator to mark the gun with his name and address, whether done on a Form 1 or Form 2. If you sent your
DEWAT to a Class 2 to make live he would have to transfer it back to you on a fully completed Form 4, as a tax paid transfer.
These procedures are not in the NFA law nor the regulations.
They are apparently based in part on the Revenue Rulings
that created the DEWAT program in the 1950's. As a DEWAT was not a NFA firearm, before 1968, requiring the making tax made
sense then as you were making a machine gun out of something that was the equivalent of a door stop, legally. Now that is
not true, the DEWAT is a machine gun, and no making tax should attach, as you are not "making" anything, merely changing the
gun from unserviceable to serviceable. Folks who are around NFA guns for very long will find there are still a lot of DEWAT
guns that were never registered during the Amnesty, and are now contraband unregistered machine guns. Folks have them in closets,
up over the mantle... The only safe course is to abandon an unregistered NFA weapon to law enforcement.
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).
Thus the question
to be answered in deciding if a weapon is an AOW would be, does it fit into any of the three categories below: 1) Is the weapon
both not a pistol or revolver, and capable of being concealed on the person? 2) Or is it a smooth bore pistol or revolver?
Examples of this include the H&R Handy-Gun, or Ithaca Auto-Burglar gun. This does not include weapons made from a shotgun.
That would be a short barreled shotgun. The receiver of a smooth bore pistol, in order to 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 Handy Guns, together with a stock, will make
them into a short barreled shotgun. 3) Or is it a combination gun, a shoulder fired gun with both rifled and smooth barrels
between 12" and 18" long, and which has to be manually reloaded? Examples of this include the M-6 military survival gun, with
a single shot barrel in .22 Hornet, and a companion .410 shotgun barrel, as well as most models of the Marble's Game Getter.
Weapons that fit the first category above are commonly called gadget guns; pen guns, stapler guns, cane guns, alarm
clock guns, flashlight guns, the list of objects is pretty long. A few have been removed from the scope of the law because
their collector status makes them unlikely to be misused; original Nazi belt buckle guns for example. See the C&R list for
these. 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 hand grip at an angle tot eh bore is an AOW. This is based on the gun a) being concealable on the person, and b)
not meeting the definition of a "pistol" in the regulations promulgated under the NFA, since they say a pistol has a single
grip at an angle to the bore. However, at least one federal magistrate has decided that if the grip is added later, the gun
is not "originally designed" to be fired by holding in more than one grip, and thus putting a second grip on a pistol does
not make it an AOW. ATF does not regard the decision as binding. The case is U.S. v. Davis, Crim No. 8:93-106 (D.S.C. 1993)
(Report of Magistrate, June 21, 1993).
The prosecution was dismissed at the request of the Government before any review
of that determination by the trial judge. By the same thinking ATF has decided that "wallet" holsters for small guns, from
which the gun can be fired, and which disguise the outline of the gun, are AOW's. This would affect, for example, the North
American Arms mini-revolver and the wallet holster NAA used to sell for the gun, as an accessory. Or the wallet holster Galco
used to make for the Beretta model 21 pistol. ATF seems to be thinking that the grip has disappeared, and thus it fits into
the first category. In all likelihood, the wallet holster decision was an outgrowth of calling the combination of a briefcase
from which the gun can be fired, and the gun, an AOW. The cases were usually meant for the SMG version of the gun, which was
fine, but could accomodate the semi-auto pistol version of the MAC, or HK MP5K as well, and that combo of the case and semi-auto
pistol was considered the AOW. 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." There
is also a revolver definition, but it does not add anything except a provision for guns with revolving cylinders, rather than
permanent chambers. Note that this definition is only in the rules for the NFA, and not 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 also not an AOW as it has a rifled bore. And it is also a handgun under the GCA. The NFA statute
does not define "pistol" or "revolver".
"The term destructive
device means 1) any explosive, incendiary or poison gas A) bomb B) grenade C) rocket having propellant charge of more than
four ounces D) missile having an explosive or incendiary charge of more than one-quarter ounce E) mine, or 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."
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 a year FFL (type 10), although an individual may make them on a Form 1, tax paid ($200). Transfers require
the whole routine just like full-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 are excluded. Thus the definition of an antique
NFA firearm is important. 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." Some examples of what is a DD and what is not: Muzzle loading cannon - NOT, as it is an antique design,
unless it has some special features allowing breech loading. Explosive grenade - is a DD Molotov cocktail - is a DD M-79 or
M-203 40mm grenade launcher - is a DD Smooth bore 37mm projectile launcher - not a DD. Not even a title 1 firearm. This item
falls under the "not a weapon" (signaling device) exception.
Generally a large bore device for which 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 these guns, and ATF has ruled that possession of a 37mm launcher and a bean bag or
rubber shot or similar round is possession of a DD, and at that point the launcher needs to be registered. Put another way,
before you make or buy anti-personnel rounds for your 37mm launcher, register it as a DD. The rounds themselves, not being
explosive, incendiary or poison gas, are not regulated in themselves either. It is just the two together. See ATF Ruling 95-3.
40mm grenade for an M-79 or M-203 - a DD. Non-explosive 40mm practice ammo - not a DD. Commercial making of it would require
a type 10 FFL though, as although the ammo is not itself classified as a DD, making ammo for a DD requires the FFL. Non-sporting
12 gauge shotgun - is a DD, because it has a bore over 1/2", and is not exempted unless it meets the "sporting use" test.
Check out the case Gilbert Equipment Co., Inc., v. Higgins, 709 F. Supp. 1071 (D. Ala. 1989) for how the sporting use test
has been re-interpreted from what it meant when the law was enacted to having ATF be arbiters of what is "sport". Flame Thrower
- not a DD, nor even a firearm. Unregulated as to possession, under federal law. Great way to clear snow off the driveway.
Japanese Knee Mortar - A DD. Even though there is no available ammo for it, explosive or otherwise, and hasn't been since
1945, because anti-personnel ammo was made for it in the past, it is a weapon. As it has a bore over 1/2" and isn't sporting,
it is a DD.
While the statute calls these devices "silencers" or "mufflers", the US NFA
industry term is "sound suppressor", as the word silencer has been given a negative connotation, and because it is inaccurate,
as these devices do not eliminate all sound from firing a gun. However you can point the folks who get all high and mighty
about the use of the word "silencer" to this definition; it is the legal term. 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." As can be seen this covers improvised
sound suppressors, and component parts of a sound suppressor. There is no thresh hold level of sound reduction for something
to fall under this definition. ATF used to require the device "appreciably" lower the sound (see Revenue Ruling 57-38) In
general recoil compensators and flash hiders do not fall under this definition, but some designs could fall into the category.
As with any borderline device the thing to do is to get a written opinion from the Technology Branch of ATF. Note that the
silencer definition applies only to devices for firearms, i.e. powered by an "explosive". An air gun silencer is not covered.
But if it can be used on a firearm it would be. Thus an airgun silencer permanently attached to the airgun, or too flimsy
to be used on a firearm, should be exempt. If you have an interest in pursuing this line of thought submit a sample or drawings
to ATF Tech. Branch. I am not aware of any airgun silencer currently made, or determined to be exempt from this definition.
But clearly there is room under the definition for such a gadget. Likewise, since antique guns, as defined in the GCA, are
not "firearms", a silencer for such a gun is not, or should not be, covered. Perhaps one fitted permanently to a pre-1899
gun?
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; * * * 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. Thus you can see why a machine gun is not also a
short barreled rifle; it is not a rifle. And you can see why a barrel is not subject to regulation, or registration, in itself.
It is a barrel, it cannot discharge a shot. A receiver alone is also not a short rifle; a short rifle is only a complete weapon
that fits into the length parameters outlined. ATF takes the position that this definition includes any combination of parts
from which a short barreled rifle can be assembled. And they said this included a set of parts with dual uses. In the Supreme
court case of U.S. v. Thompson/Center Arms Co., 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 barrel less than 16 inches long was a short barreled rifle. The idea of the kit
was that you needed only one receiver, and you could have both a rifle and pistol in one gun.
While making a pistol
out of a rifle is making a short rifle, ATF has approved of converting a pistol into a rifle, and then converting it back
into a pistol, without "making" a short barreled rifle when it is converted back into a pistol; that was not an issue. See,
for example Revenue Rulings 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, unless it actually was assembled with the shoulder stock, and short barrel, something they instructed
the purchaser of the set not to do. The Supreme court disagreed with ATF, and agreed with Thompson/Center. The Court said
that a set of parts was not a short barreled rifle, unless the only way to assemble the parts was into a short barreled rifle.
As this set had a legitimate, legal, use for all the parts it was OK. However they also approved of lower court cases holding
that the sale by one person, at the same place, of all the parts to assemble an AR-15, with a short barrel, was sale of a
SBR, even if they weren't assembled together at the moment of the bust, and had in fact never been assembled. See U.S. v.
Drasen, 845 F.2d 731 (7th Cir. 1988). This was because the only use for the parts in that case was a SBR. If the person in
that case also had a registered M-16, then there would be a legitimate use for the SMG barrel, and there shouldn't be a problem.
And the Court agreed, of course, that a fully assembled rifle with a barrel less than 16", or an overall length of less than
26" was also subject to registration. Although it was not addressed in the case, the rule is that an otherwise short barreled
rifle that is very easily restored to firing condition (readily restorable); e.g., one missing a firing pin, but for that
pin one may substitute a nail or other common object, is also subject to the law.
Here is my attempt to list what state allows what, in terms of NFA weapons. The "Y" indicates state law allows private
individuals to own the weapon in question. Most of the "Y" states require the weapons be possessed in compliance with federal
law to be legal under state law. Some of the "N" states may allow only police officers to possess them, or dealers, or neither.
Basically if the privileged class was so narrow, by statute, I said "N". In many states the class of folks able to own NFA
weapons is narrow by practice (California), or because no law enforcement officers will sign the certification needed for
a transfer to an individual. Some of the "N" states may also have grand-fathered weapons, the "N" applies to a current transaction.
Some "N" states may also allow unserviceable weapons. Some states may regulate one or more of these weapons as handguns.
KEY
MG - machine gun SI - sound suppressor (silencer) SR - short barreled rifle SG - short shotgun AOW - any other
weapon LBDD - large bore destructive device EXPDD - explosive, incendiary or poison gas destructive device
STATE,
MG, SI, SR, SG, AOW, LBDD, EXPDD, Comments AK- Y Y Y Y Y Y Y AL 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 Y CA 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 Y GA- 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 Y IL- N N N N Y ? N IN- Y Y Y
N Y Y N KS- 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 Y MI- 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 N NC- 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 Y NJ Y N N N Y N N (mg requires discretionary and rarely issued permit from state court) NM- Y Y Y Y Y
Y Y NV- Y Y Y Y Y Y Y NY- 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 Y OK- Y Y Y Y Y Y Y OR Y Y Y Y Y Y Y (no incendiary expdd's) PA- Y Y Y Y Y Y N RI - 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 Y TN-
Y Y Y Y Y Y ? TX- Y Y Y Y Y Y Y UT- Y Y Y Y Y Y Y VA- Y Y Y Y Y Y Y (state registration of all mg's) VT-
Y N Y Y Y Y Y WA- 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 ?
As a general rule the definitions of NFA weapons, as regulated in California,
track exactly the federal definitions, and categories. Cal. Penal Code Sec. 12020(a) prohibits the possession of, among other
things, AOW's (Any other Weapons) and short shotguns and short rifles. Subsection (b) lists exemptions to the application
of (a). Subsection (b)(7) of section 12020 exempts any "firearm or ammunition" lawfully possessed under federal law and on
the C&R list. Subsection (b)(8), exempts ALL AOW's except "pen guns." Subsection b(2) is the exemption for the movie permit
for short shotguns and short rifles with the procedure for its issuance found at section 12095. In short, Californians can
legally possess any AOW, except a pen gun, as long as it is possessed in compliance with federal law, and as long as it isn't
classified as an assault weapon (SB 23 treats some semiauto pistols with dual pistol grips, AOWs under federal law, as prohibited
assault weapons).
Likewise they can possess any C&R listed short rifle or short shotgun. Short shotguns and short
rifles are defined at (c)(1) and (c)(2) respectively; the definitions are essentially the same as federal law. HOWEVER, unlike
the feds, California courts have ruled that the length of a rifle with a folding stock is measured with the stock folded,
not extended, as the feds do. So a gun that is not a short rifle under federal law may be one under California law. See People
v. Rooney, 17 Cal.App.4th 1207 (1 Dist. 1993). Any firearm whose possession is otherwise prohibited by subsection (a) is ok,
under b(7), if the gun is a C&R one and lawfully possessed under federal law. This would not provide an exemption to the requirement
for a state permit for a machine gun, as 12020(a) does not regulate mg's. That is section 12220 (ban) and 12230 et seq. (permits).
Rules for DD's are at section 12301 et seq. Silencers are regulated at section 12500 et seq. The state Department of Justice
has discretionary authority to issue permits to possess DD's or machine guns, and does not issue them to collector-civilians.
Civilians are totally prohibited from owning silencers.
Carolina regulates machine guns in two areas of their law, both as machine guns, and lumped in to a category of all NFA weapons
(and some other, non-NFA weapons as well), which they call "weapons of mass death and destruction". The respective statutory
sections are 14-409, and 14-288.8. In order to be exempted from the general ban on possessing "weapons of mass death and destruction",
found at section 14-288.8, you need to be either an FFL holder (including a collector's FFL, type 03), OR be one of apparently
many "inventors, designers, ordnance consultants and researchers, chemists, physicists, and other persons lawfully engaged
in pursuits designed to enlarge knowledge or to facilitate the creation, development, or manufacture of weapons of mass death
and destruction intended for use in a manner consistant with the laws of United States and the State of North Carolina." While
there are a few other exceptions, they do not apply to most people. In addition to machine guns being regulated as weapons
of mass death and destruction, section 14-409 of the North Carolina statutes regulates machine guns in particular. It says
that it is illegal to have one, unless you fall one of into several categories: 1. Banks, merchants and recognized businesses
that have obtained a permit for the gun from their counties sheriff; 2. persons in the U.S. military, while engaged in their
duties; 3. persons in the state militia, while engaged in their duties; 4. peace officers, while engaged in their duties;
5. "the manufacture, use or possession of such weapons for scientific or experimental purposes when such manufacture, use
or possession is lawful under federal laws and the weapon is registered with a federal agency, and when a permit to manufacture,
use or possess the weapon is issued by the sheriff of the county in which the weapon is located"; 6. persons who possessed
such guns as a war souvenir before the law was passed may also keep them legally if they register them with their sheriff.
Since the laws suggests you need the "permit" after you acquire the machine gun, not before, ATF should not require proof
of a state permit that only applies after you take delivery to approve a form 4.
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 a machine gun transfer form, including a transfer to a dealer. A permit from the sheriff of the county
where the machine gun is lcoated, in addition to the Form 4, is required to possess a machine gun legally, under the law.
Arguably, possession of a machine gun under the permit is exception requires a permit from any county where the machine gun
is located, at any time, including moving the gun with your personal property from one residene to another, or even transporting
it. See the email from the A.G.'s office, below, indicating in an informal opinion that no permit is needed to move it through
counties from place of purchase to its place of storage, although a permit is needed for where it will be stored, and if it
is to ever be stored in a new county, a permit from the sheriff of that county will be needed. The permit would be for "scientific
or experimental" purposes, unless you fall into one of the other categories. However, your sheriff may consider the approved
Form 4 to be your "permit".
Whether the D.A. would agree that a form 4 signed by the sheriff is a "permit" is another
issue, and whether collecting and fun shooting is possessing for scientific or experimental purposes is yet another issue.
In addition, to comply with the "weapon of mass death and destruction" statute you need to either have an FFL, or have the
gun for purposes listed as lawful in that statute. Until the late 1980's North Carolina law defined any firearm which was
set up to fire 31 or more rounds without reloading as a machine gun, regardless of whether it fired more than one shot with
a single pull of the trigger. See State v. Lee, 877 N.C. 242 (1970), for a discussion of the prior statute. Lee possessed
an apparently semi-automatic Universal M-1 carbine with a 30 round magazine, and was prosecuted, the prosecutor apparently
counting 30 rounds in the magazine and one in the chamber to reach 31.
This prior definition excluded some machine
guns, since it was dependent soely on magazine capacity, and as shown by the Lee case, included some guns which are not usually
considered machine guns. As a result, many persons have machine guns in N.C., for which they do not have a permit, and arguably
do not qualify for a permit either - they don't have the gun for the extremely limited reasons in the law. A push has started
(1/2000) to get section 14-409 repealed, or amended to permit any Federally registered machine gun. James H. Jeffries III,
a attorney who practices firearms law in North Carolina and in various federal courts, offers these additional thoughts: You
may wish to point out that (1) where two statutes inconsistently address the same subject matter (e.g., the collector's exception
for weapons of mass death and destruction), the specific statute (the MG statute) will be deemed to prevail over the general;
(2) the great bulk of MGs legally registered in NC occurred before 1989 when the statute defined a MG as anything with a 31-round
capacity or greater, regardless of type of fire (it has now been amended to use the federal definition); (3) many of the 100
NC sheriffs have no knowledge of the law and are conditioned by our pistol permit scheme to sign gun permits; (4) the NC AG's
office for a long time was equally ignorant; (5) BATF continued to believe that NC is a MG state because many sheriff's continue
to (erroneously) sign Forms 4 and 5; (6) some of the urban sheriffs and the state AG are beginning to wake up; (7) we have
a general firearms forfeiture statute which makes seizable any firearm used (possessed) in violation of the law.
I
refrained for years from disseminating this info because of the potentially devastating effect on MG owners, but the word
is now out. I have advised NC clients for several years that purchasing a MG in NC is a risky proposition and that only legislation
can change the situation. In addition, a correspondent sent me this email he received from the 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:
Subject: Fw: Response to Machine Gun Questions Date: Tue, 14 Dec 1999 21:18:02 -0500 From: "Victor Au" To: Mr. Bardwell, I
have responses from the NC AGs office regarding the transportation of MGs in NC, as well as the need for a permit where the
MG (the machine gun owner) is "located". It would appear that to transport the gun from one point to another across county
lines does not require permits from each County Sheriff. However, when you move, you need a permit from the Sheriff where
you move to, as you have pointed out in previous posts. Thanks for your efforts on behalf of NFA firearms owners. Victor Au.
-----
Original Message ----- From: Criminal Div. NC Dept of Justice To: Sent: Tuesday, December 14, 1999 7:01 PM Subject:
Response to Machine Gun Questions > Dear Mr. Au: > > The Attorney General has received your inquiry via e-mail, and I am happy
to respond. As I understand your questions, you are trying to resolve two (2) issues. First, you want to know if a person
lawfully entitled to possess a machine gun has to obtain a permit from the sheriff of each county through which the machine
gun must pass in order to be transported from the place of purchase to the ultimate destination. Second, you have asked whether
or not a lawful machine gun owner has to obtain a permit from the sheriff of a county to which the machine gun owner has moved.
> > The relevant statute for purposes of evaluating the lawfulness of the 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 commend this statute to you for your review. This
statute also provides answers to your two (2) questions. > > N.C. Gen. Stat. section 14-409 specifies that the statute's prohibitions
on the possession of a machine gun do not apply to citizens who have properly acquired a permit to possess such a weapon.
This statutory language speaks of the term "permit" in a singular manner. Thus, if a person properly possesses a permit for
the possession of a machine gun pursuant to the provisions of N.C. Gen. Stat. section 14-409, that person can lawfully transport
the machine gun from the place of purchase to the weapon's ultimate destination. > > An analysis of the language found in
N.C. Gen. Stat. section 14-409 is also instructive for purposes of answering your second question. This statute requires a
permit for the possession of a machine gun to be obtained from the sheriff of the county where the machine gun (machine gun
owner) is located. Thus, if the lawful owner of a machine gun takes the weapon to a different county, a new permit will have
to be obtained from the sheriff of the county where the weapon is currently located. > > I hope this information is helpful
to you. If this response to your inquiry is not satisfactory, please feel free to contact me by telephone at (919) 716-6725.
> > Sincerely, > Jeffrey C. Sugg > Associate Attorney General > Law Enforcement Liaison Section > ATF Forms and Descriptions,
by Category and Number
ATF Firearms Forms (in Numerical
Order by Form) This information is correct, to the best of my knowledge, as of 26 June 1997. This compilation is copyright
(c) 1995, 1996, 1997 by Trenton J. Grale. Permission is granted herein to copy and distribute this document, in whole or in
part, with attribution, for noncommercial and nongovernmental use only. [Note: My thanks to James O. Bardwell for corrections.]
Form Title ----
1 (5320.1 ) - Application to Make and Register a Firearm 2 (5320.2 ) - Notice of Firearms Manufactured
or Imported 3 (5320.3 ) - Application for Tax-Exempt Transfer of Firearm and Registration to Special (Occupational) Taxpayer
4 (5320.4 ) - Application for Tax Paid Transfer and Registration of Firearm 5 (5320.5 ) - Application for Tax Exempt
Transfer and Registration of a Firearm 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 Forces 6 (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 War 7 (5310.12) - Application for License 7CR (5310.16) - Application for License (Collector of Curios and
Relics) 8 (5310.11) - Federal Firearms License 9 (5320.9 ) - Application and Permit for Permanent Exportation of Firearms
10 (5320.10) - Application for Registration of Firearms Acquired by Certain Governmental Entities 11 - [OBSOLETE--Used
to be return for SOT. See 5630.7.] 3310.4 - Report of Multiple Sale or Other Disposition of Pistols and Revolvers 3310.6
- Interstate Firearms Shipment Report of Theft/Loss 3310.11 - FFL Theft/Loss Report 3310.11A - FFL Theft/Loss Report (Continuation)
4467 - Registration of Certain Firearms During November 1968 4473 (5300.9) - (Part I) Firearms Transaction Record--Over
the Counter 4473 (5300.9) - (Part II) Firearms Transaction Record--Non-over the Counter 4473 (5300.24)- (Part I) (LV)
Firearms Transaction Record Part I Low Volume--Over the Counter 4473 (5300.24)- (Part II) (LV) Firearms Transaction Record
Part II Low Volume--Non-over the Counter 5300.34 - [OBSOLETE.] Questionnaire for Responsible Persons 5300.35 - Statement
of Intent to Obtain a Handgun(s) 5300.36 - Notification of Intent to Apply for a Federal Firearms License 5300.37
- [OBSOLETE.] Certification of Compliance with State and Local Law 5300.38 - [Replaces 5300.34 and 5300.37.] 5320.20 -
Application to Transport Interstate or to Temporarily Export Certain National Firearms Act (NFA) Firearms 5630.6A - Special
Tax Stamp 5630.7 - Special Tax Registration and Return: National Firearms Act (NFA)
******************
Section 2********************
The How To's and Who can own a MACHINE GUN or SUPPRESSOR
Table of Contents
General
NFA Purchasing Requirements Purchasing Steps Total Costs For NFA Purchase
GENERAL NFA PURCHASING
REQUIREMENTS
Most people are not aware that an average citizen can own a machine gun or a suppressor (silencer)
by completing the appropriate paperwork and paying the corresponding fees. Here is a summary of the basic requirements for
NFA (Class 3) ownership: You have to live in a state that allows its citizens to own the type of firearm that you want to
purchase. For instance, some states do not allow any NFA firearms, others allow machine guns but not suppressors while most
others allow all NFA. To the best of our knowledge as of this writing: Machineguns are LEGAL for individuals to possess in
all states EXCEPT in DE, DC, HI, NY, WA. Suppressors (silencers) are legal in all states EXCEPT in DE, DC, HI, IL, MT, NY,
NJ, RI. You have to meet the federal requirements of the 4473 "Yellow Form", such as 21 or older, clean criminal background,
no dishonorable discharge, US citizen, etc. Basically if you can legally purchase a handgun, you can legally purchase an NFA
(Class 3) firearm.
There is no license required to own an NFA (Class 3) firearm. There is a one time tax that
must be paid to ATF when you apply to have the registration transferred to your name. There is no ongoing yearly fee charged
by the ATF. For machine guns, suppressors, short barrel shotguns, short barrel rifles and destructive devices, there is a
one time $200 tax in addition to the purchase price of the firearms. For AOW (Any Other Weapon) firearms, there is a $5 transfer
tax. Even if you purchase 10 machine guns and 10 suppressors, EACH one would have a $200 tax. ATF will issue a tax stamp for
$200 upon your approval and that tax stamp along with the form that it is affixed to is your receipt and proof of legal ownership.
The sheriff or chief of police or state police, whichever is YOUR Chief Law Enforcement Officer must be willing
to sign your Form 4 (Application for Tax Paid Transfer and Registration of an NFA Firearm) attesting that he does not know
of any reason that you should not have the NFA firearm. Whether you have a concealed carry permit, have a perfectly clean
criminal background, voted for him or whatever, it is at the discretion of the CLEO (Chief Law Enforcement Officer) whether
or not he will sign. He has no legal obligation to sign and if he will not sign, ATF will not process your application for
Tax Paid Transfer and Registration of an NFA Firearm and you will not get the firearm. If you own a corporation, you can transfer
the NFA firearm to the corporation and no CLEO signature is necessary.
You have to be fingerprinted by the Cleo
and the print cards are submitted to ATF along with your $200 tax and your Form 4 (Application for Tax Paid Transfer and Registration
of an NFA Firearm).
You have to have the serial number before any paperwork can be printed or processed to begin
the transfer to you which generally means that you have to pay for your firearm.
It takes about 90 to 120 days
for ATF to approve the transfer of your NFA firearm. During that time, your local dealer who provided you with the Form 4
application, will maintain possession and ownership. After ATF approves the transfer and returns the approved Form 4 to your
local dealer, then you can take possession of the firearm.
Some states (such as LA, MD etc) have additional state
transfer and licensing requirements. Some states will only allow its citizens to purchase C & R (Curio and Relic) firearms
which are designated by ATF to be C & R status. Generally only original (not USA made remanufactured firearms such as MACs)
firearms qualify as C & R and as such they command a premium price.
PURCHASING STEPS
Given that you
can meet the purchasing requirements outlined above, here is a check list of the steps you should take to own an NFA firearm.
Choose which firearm(s) including suppressors that your would like to own. Email us to verify its availability and price.
Machine guns, since they can no longer be manufactured and registered for sale to individuals, are basically a spot market
commodity. That means that the price is determined on the day you buy it. Prices change (go up) frequently. We will email
you back a confirmation of price and availability as well as compatibility of any accessories you might want. Print the reply
email and use it as your purchase order.
Make sure that you have the funds to pay for it (them) in full with shipping.
Call your local CLEO (sheriff, chief etc) and ask him what his procedure is for signing Form 4 federal applications for NFA
transfer and ownership. Make sure that he will sign BEFORE your buy the firearm. If he won't sign, you don't get the gun.
If you have already purchased it and we've initiated the paperwork to change the ownership registration from us to your dealer,
you will be charged a 15% restocking / paperwork fee. Its the same situation as if someone wanted to buy your car, came over
to your house and said they would take it, you fill out the back of the title with their name and info and then they decided
they don't want it. You would have to go to the Motor Vehicles Administration and get a new title etc before you could sell
it to someone else, all of which is a huge waste of your time. The situation with NFA transfers and paperwork is similar so
make sure you can own it BEFORE you buy it. Often your local dealer can offer advise on which counties and sheriffs will sign.
Locate a local in state dealer that will receive your NFA firearms from us and hold them while the paperwork is pending
to transfer them to you. We will transfer the firearm(s) to him dealer to dealer with no tax incurred and then he will transfer
them to you with the $200 transfer tax per firearm collected by the ATF.
Mail us your check for payment in full
along with the purchase order email so that we will know what you are buying. Your price is fixed as of the date of the email
even if we have a price increase, pending the timely receipt of your payment. "Timely" is approx. 7 calender days. Include
your name, address and contact telephone and email information. Indicate the dealer's name if his paperwork will arrive under
separate cover. Have your dealer send us a copy of his license with original ink signature and a copy of his SOT receipt if
we don't already have it on file. Upon receipt of your order and payment, we will return to you via US mail, an itemized receipt
listing your purchase as well as payment. Upon receipt of your dealer's information, we will initiate transfers to ATF to
change the registration for each item from our name to your local dealer's name. Copies of the Form 3 transfer application(s)
will be mailed to your dealer. Serial numbers will only be provided to your dealer. Since every state and county is a little
bit different, contact him for directions on when to start local paperwork requirements etc.
GENERALLY, in 30
days or so, ATF will return the approved Form 3's to us. We will ship your order UPS ground, well packaged and insured for
full value, to you local dealer along with an itemized packing list. Your dealer can then start the ATF paperwork at the federal
level to transfer the firearm(s) to you, which generally takes 90 to 120 days.
Call or email if you have any questions
that we've missed. We'll be happy to help you with your order.
TOTAL COST FOR NFA PURCHASE
Everyone
wants to know what is the TOTAL Bottom line cost for buying an NFA firearm. Here is our best attempt to give you a total cost.
Remember that it will vary by state and local requirements and this list is intended to serve as an estimate, not as an all
inclusive list encumpassing every possibility in every situation. Therefore we can not guarantee that your buying experience
will work out financially exactly the same.
1. Cost of the gun and any accessories 2. UPS shipping and insurance
(generally $20 for a MAC, $10 for a suppressor) 3. $200 transfer for each NFA item. (MAC and suppressor is $400 total)
4. Local Class 3 dealer charge, generally $100 but actual fee is between you and the dealer you select. 5. Local CLEO
fee for background check and or finger prints. Some charge, some don't.
This should be your approx. total out of pocket
expenses for your NFA pruchase.
