Section 1
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.
AOW - any other weapon
ATF - Bureau of Alcohol, Tobacco and Firearms
ATT - Alcohol and Tobacco Tax Division of the IRS, the pre-68
administrators of the NFA
C&R - curio and relic
CFR - Code of Federal Regulations
DD - destructive device
FET - federal excise tax
FFL - federal firearms license
GCA - Gun Control Act
NFA - National Firearms Act
SOT - special (occupational) taxpayer
U.S.C. - United States Code
DEWAT - De-activated war trophy
There are two kinds of firearms under U.S. (federal) law, title 1 firearms and title 2. Title 1 firearms are long guns (rifles and shotguns), handguns, silencer, and firearm frames or receivers. Most NFA weapons are also title 1 firearms. Title 2 weapons are NFA weapons. Title 2 of the 1968 Gun Control Act is the National Firearms 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 3 weapons, because a class 3 SOT (see below) is needed to deal in NFA weapons.
These weapons may also be further regulated by states or localities, and while these weapons can be legally owned under federal law, some states and localities further regulate ownership or prohibit it (see below). The NFA Branch of ATF administers the taxation of the guns, and the registration of them in the National Firearms Registration and Transfer Record.
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 these weapons are is defined in the law, as well as in court cases interpreting the law. Without going into to much detail, these are what the categories encompass:
A machine gun is any gun that can fire more than one shot with a single pull of the trigger, or a receiver of a machine gun, or a combination of parts for assembling a machine gun, or a part or set of parts for converting a gun into a machine gun.
A silencer is any device for muffling the gunshot of a portable firearm, or any part or parts exclusively designed or intended for such a device (see discussion below).
A short barreled shotgun is any shotgun (which is defined as a shoulder fired, smooth bore firearm) with a barrel of less than 18" or an overall length of less than 26", or any weapon made from a shotgun falling into the same length parameters.
A short barreled rifle is a rifle (which is defined as a shoulder fired, rifled bore firearm) with a barrel length of less than 16", or an overall length of less than 26", or any weapon made from a rifle falling into the same length parameters (like a pistol made from a rifle). In measuring barrel length you do it from the closed breech to the muzzle, see 27 CFR sec. 179.11. To measure overall length do so along, "the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore." 27 CFR sec. 179.11. On a folding stock weapon you measure with the stock extended, provided the stock is not readily detachable, and the weapon is meant to be fired from the shoulder.
A destructive device (DD) can be two basic categories of things. It can be an explosive, incendiary or poison gas weapon, like a bomb or grenade. It can also be a firearm with a bore over 1/2", with exceptions for sporting shotguns, among other things (see discussion below). I call the second category large bore destructive devices. As a general rule only this second category is commercially available.
Any other weapons (AOW's) are a number of things; smooth bore pistols, any pistol with more than one grip, (but see below) gadget type guns (cane gun, pen gun) and shoulder fired weapons with both rifled and smooth bore barrels between 12" and 18", that must be manually reloaded (see discussion below).
These definitions are simplified, to see if a specific gun is a title 1 or 2 firearm one needs to refer to the specific definition under the statute(s), and possibly consult with the Technology Branch of ATF. There is also case law on the issue of whether a specific item falls into one of these categories. In addition, as a general rule, a parts kit, i.e. all of the parts to assemble an NFA firearm, whether a parts kit is specifically included in the statute or not, is usually considered to be the same as the assembled firearm.
It is illegal for anyone to have possession of an NFA weapon that is not registered to them in the NFA registry. It is also not possible for anyone, except government entities, to register an existing NFA weapon that is not registered, except within 24 hours after one is made by a class 2 NFA manufacturer. An individual otherwise able to own any gun under federal law can receive and own any NFA weapon (local law permitting, ATF cannot approve a transfer where federal, state or local law would be violated by the transferee possessing the weapon in question, see 26 U.S.C. sec. 5812(a)(6)) on a Form 4, "Application for Tax Paid Transfer and Registration of Firearm". Non-FFL holders may only purchase an NFA weapon from a dealer or individual within their own state. If the weapon is located out of state it must be transferred to a class 3 dealer within the state, before transfer to the non FFL purchaser. C&R FFL holders (type 03) may purchase C&R NFA guns from out of state dealers and individuals. Type 01 FFL holders, who are not qualified to deal in nFA weapons, that is are not SOT taxpayers (see below) may purchase any fully transferrable (no dealer samples, see below) NFA weapon, from an out of state source. If the FFL holder is an individual he must submit fingerprints, photograph, and the law enforcement certification.
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 chief law enforcement officers to sign the form (see below on the law enforcement certification for more information), submit their fingerprints in duplicate, and attach photos of the transferee to the form. While the transfer tax is levied by law on the transferor (seller), in practice the transferee (buyer) is expected to pay the tax. Initial transfers to individuals tend to take at least 4 months, although subsequent transfers can be quicker.
Or you can make any NFA weapon, except for machine guns (see below), by filing ATF Form 1, "Application to Make and Register a Firearm", and paying the $200 making tax, which applies to all of these weapons, including AOW's. You may not make the proposed weapon until the Form 1 is returned to you approved. The law enforcement certification, photos and fingerprints also apply to
Form 1's, and in fact to any transfer to an individual. Additionally the manufacturer of any NFA weapon, including an individual making one on a Form 1 must mark the receiver of the weapon with the maker's name and city and state. NFA Branch can grant exemptions from this for DD's. All types of corporations, including corporate type 01 FFL holders, need not do the certification, photo and fingerprint requirements. Any of the forms listed, and the fingerprint cards, are available for free from ATF, either in Washington, D.C. or your local office.
The original of the paperwork should be kept in a safe place, I suggest a safe deposit box. ATF can demand to see the form (see below on your 4th amendment ights). On a tax paid transfer, ATF puts a tax stamp, like a postage stamp (or like the one that caused the American colonists to take up arms), on the document. Once it is used you cannot get another. ATF can supply a copy of the form should you lose one, but is not unheard of for ATF to have no record in their computer of a weapon registered to you. Having the paperwork can avoid a lot of hassles. Every effort should be made to not lose it.
Additionally, if the gun in question is a machine gun, not having the paperwork can lead to being charged with a violation of 18 U.S.C. sec. 922(o), the ban on possessign machine guns made after May 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.3d 526 (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 issue have ruled that sec. 922(o) prohibits possessing all machine guns, and it is an affirmative defense to such a charge that the weapon was legally possessed before it took effect. It is up to the defendant to prove an affirmative defense, although by a lower evidentiary standard than the government needs to prove to show a criminal violation (usually preponderance of the evidence versus beyond a reasonable doubt). It is not up to the government to prove the weapon was not registered, for a charge under sec. 922(o), at least according to all the appeals courts that have considered the question. If you don't have the paperwork, and it isn't in ATF's computer, (it is likely they will check, even though they don't have to prove non-registration, they don't want someone to wave a registration form in their face during a trial) you can have a serious problem.
The transfer paperwork is nominally a tax return; the purpose of the registration, and the National Firearms Registration and Transfer Record (NFRTR or Registry) is keeping track of who owes the tax. Taxpayer privacy laws apply to a transfer form, and ATF may not discuss a pending transfer with anyone but the taxpayer. They sometimes claim that the taxpayer on a tax paid transfer is the transferor (seller), as he is responsible for the tax by law. This also serves to allow ATF to refuse to discuss why a transfer is taking so long with the party who is most interested in that question, the transferee (buyer). However, in another context (releasing information under the Freedom of Information Act) ATF
has decided that as to a Form 4, the tax form is a joint return between the transferor and transferee (see 1980 memo re Auto Ordnance Corp. FOIA request on my web page). The transferee should be entitled to the information about the status of the application on the same basis as the transferor. That is not ATF's usual practice, however with pending transfers.
These taxpayer privacy restrictions do not apply to disclosure of the form by other persons whio might have access to it, a local LE chief who provided the certification, for example, and retained a copy of the form. Nor do they apply to a court ordered disclosure by anyone who might have a copy (buyer or seller for (example), by subpoena or similar measure.
The NFA law also prohibits the use of Registry information obtained from natural persons (only) for any law enforcement purpose except prosecutions for making a false statement on a transfer form (26 U.S.C. sec. 5848). Other tax laws prohibit the release of transfer information by the Feds, as a tax return, except for certain narrow law enforcement type circumstances. See
26 U.S.C. sec. 6103. The Feds may not legally disclose whether someone has a registered NFA firearm, or not, to any state or local law enforcement agency or personnel.
However, as most NFA weapons are also regulated by the GCA, purchases from a dealer in NFA weapons requires the completion of the standard 4473 yellow form, as well as dealer bound book records, and this source of information is not so similarly restricted. ATF may release this information to local law enforcement for a host of law enforcement purposes. See 18 U.S.C. sec. 923(g)(1)(D).
Law enforcement, states, and local governments are totally exempt from the making and transfer (either to or from) taxes, but must comply with the registration requirements. While the NFA only specifically provides that there is no transfer tax due when the U.S. government is the transferee, (26 U.S.C. sec. 5852(a)), or a state governmental entity (26 U.S.C. sec. 5853(a)), ATF has made up an exemption from the transfer tax where any U.S. or state governmental 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 privileged attorney-client work product. Abuses of this tax exemption, as in transferring guns through governmental entities so as to avoid transfer taxes, have been successfully prosecuted. See U.S. v. Fleming, 19 F.3d 1325 (CA10 1994). Federal government agencies, the military, and National Guard are exempt from the registration or tax requirements, and generally speaking NFA Branch removes weapons from transferrable status in the Registry once they are transferred to the federal government.
There is no tax on transfers to anyone of a weapon that is unserviceable. Making a weapon unserviceable means it is permanently altered so that it cannot work, and is not readily restorable. For example a gun can be made unserviceable by welding the chamber closed, and welding the barrel to the receiver or frame. An unserviceable weapon is sometimes called a DEWAT, for DE-activated WAr Trophy (see below).
There is no tax on a transfer to a lawful heir from the owner's estate. Lawful heir just means someone named in a will to get the weapons, or a person entitled to inherit under the applicable intestacy laws if there was no will, or the will did not apply. The heir must be able to own the weapon under state and federal laws. The heir will have to do all the other steps of a transfer to an individual, except that recently ATF has said they would not require the LE certification. Unless the heir is also a class 3 SOT 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 machine guns, see below). A weapon to an heir may also be transferred interstate directly to the heir, if need be; the gun need not be transferred to a dealer in the heir's state, if the deceased owner resided in another state.
Special (Occupational) Taxpayers (SOT's) under the NFA are exempt from some of the making or transfer taxes. All SOT's may transfer weapons between themselves tax free. However a transfer between an unlicensed individual and a SOT will require the tax. And unless one 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. Sole proprietor SOT's need not get the law enforcement certification for any transfer, except DD's (unless they have the appropriate FFL), even for their own personal collection, although in that case they should pay the $200 transfer tax. They also need not attach a photo to the transfer paperwork, nor submit fingerprints. The Crime Bill (effective 9/13/94) now requires these things with FFL applications, and SOT applications, however, and ATF was requiring them even before that became law, since early 1994. If one plans to engage in business in NFA weapons, one needs to be a SOT, just
as one needs the FFL if they plan to engage in the business of dealing, making, or importing regular firearms.
The classes of SOT holders: Class
1 - importer of NFA firearms,
2 - manufacturer of NFA firearms
3 - dealer in NFA firearms
A class 1 or 2 SOT may also deal in NFA firearms. A class 3 SOT costs $500 a year, due each July 1. A class 1 or 2 SOT costs $1000 a year, except that SOT's who did less than $500,000 in gross receipts in business the previous year qualify for a reduced rate of $500 per year, also due July 1. One must also have the appropriate FFL to engage in the specific activity, as well as the SOT. This is because most NFA weapons are also title 1 weapons, and thus both the law regulating title 1 weapons (the GCA) and title 2 weapons (the NFA) must be complied with. As with the privacy of Registry information and transfer information, SOT status is also protected tax information, and ATF will not release lists of SOT holders, as they will of FFL holders.
A Class 2 SOT can make, tax free, machine guns, silencers, short rifles, short shotguns or AOWs. A Class 2 can also have weapons transferred to him tax free, by other SOT's. He also has to have a type 07 or type 10 FFL. He does not need to ask prior permission of ATF to make a weapon, he would notify ATF of its making within 24 hours after its making by filing Form 2 with ATF. He could also
import foreign made NFA weapons, for R&D use. To import a machine gun (only) a Class 2 would need a letter from a governmental entity able to own the weapon requesting a demonstration. A weapon imported for R&D must be exported or destroyed when the R&D is completed, whereas a weapon imported for sale to a government entity would be considered pre-86 dealer samples. To import for sale to government entities you need a Class 1 SOT.
A sole proprietor SOT may keep any NFA weapon he has after surrendering his SOT, as his personal property, except post-86 machine guns, discussed below. If ATF thinks, based on the number of weapons retained and the timing, that your SOT status was used to evade the transfer taxes, they may demand transfer or making taxes on all or some of the guns. Conceivably you could also be prosecuted for tax evasion.
Destructive devices are treated differently, in terms of manufacturing or dealing. One must have a special FFL, (type 9, 10 or 11, to deal, make or import respectively) and be a SOT to make one tax free or deal in them. But anyone can make them on a Form 1, tax paid.
Machine guns are also treated differently. In 1986, as part of the Firearm Owners' Protection Act (FOPA), Congress prohibited individuals from owning machine guns, and made it an affirmative defense that the machine gun was registered before the act took effect (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 that was registered before that date. Any registered after that date can only be owned by SOT's, law enforcement, and government entities. A SOT may not keep these machine guns after surrendering his SOT. In order to transfer one of these machine guns, the SOT must have a request from an agency able to own one for a demonstration. Or an order from one of those agencies to buy one. A class 2 SOT can make machine guns for research and development purposes, or for sale to dealers as samples, or for sale to government entities. These are commonly called post-86 machine guns.
On top of the FOPA machine gun restrictions, any NFA weapon imported into the U.S. after the Gun Control Act took effect (end of 1968) cannot be transferred to an individual. See 26 U.S.C. sec. 5844. They can be transferred to SOT's, although without any written police demonstration request, and kept by the SOT after surrendering his SOT. These are sometimes called "pre-86 samples", or "dealer samples", although dealer sample can be used to refer to either a post-86 machine gun or to any NFA weapon imported after 1968.
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 registration paperwork, whatever it is, with the gun. Some states do require this, state law bans all or some NFA weapons, and exempts from the ban only those possessed in compliance with federal law. In such a 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 an SOT with the paperwork when you move the guns around. But an individual who surrenders his SOT can still have weapons that will be registered on a Form 2 or Form 3 legally, so not having a copy of the SOT with such paperwork proves nothing. You need not ask ATF for permission when you move to a new address within the same state, nor are you required to advise them of your new address.
To move weapons between states two rules apply. An individual must get permission from ATF to move machine guns, short rifles, short shotguns or destructive devices between states (or to temporarily export them) before doing so. This includes taking them somewhere to shoot them, or when permanently changing
residences. There is a form called a 5320.20, and ATF will always approve them, and fairly quickly, assuming the purpose (generally stated) for the movement is legitimate, and the destination state allows the weapon in question. A licensed dealer can move weapons (except DD's) interstate at will, no permission is needed. But while most states that otherwise prohibit some or all NFA weapons have exceptions for SOT's, or FFL's, a few do not, and thus the dealer must make sure he will not be breaking any laws. An unlicenced individual need not ask permission to move AOW's or suppressor's interstate, again watch the laws at the target state. Having the approved 5320.20 form for a suppressor or AOW can avoid hassle while traveling. Lots of folks who think they know something about the NFA don't know you only need permission for interstate movement of some NFA weapons. ATF will approve a 5320.20 for suppressors and AOW's; they will approve a 5320.20 for an FFL also, even if he doesn't need it by law. A C&R FFL holder can 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.
A lost or stolen NFA firearm can be a real problem. It can be a very expensive loss, as well as endangering the continued lawfulness of owning NFA firearms, both at a state and federal level. Contrary to what you might hear, NFA firearms, machine guns and silencers in particular, are very rarely used in crimes, compared to regular handguns, rifles and shotguns. A significant source of NFA weapons used in crime are stolen firearms, from law enforcement, the military and civilian collectors. A crime spree with a stolen NFA firearm can lead to restrictive state or local legislation, as well as local law enforcement refusing to continue
providing the law enforcement certification needed for transfers to individuals. Safeguarding NFA firearms is not required, but seems to me to be extremely prudent, both to preserve the firearm, as well as its continued legal ownership. Reporting the theft of an NFA weapon to law enforcement is the only way to even have a chance at recovering the gun, and preventing its use (or further use) in crime. I think reporting its theft is a good idea. Below is what is required, as opposed to what is a good idea.
ATF has made up a rule, 27 CFR sec. 179.141, that requires the owner of a lost or stolen NFA weapon to make a report "immediately upon discovery" to ATF including the name of the registered owner, kind of firearm, serial number, model, caliber, manufacturer, date and place of theft or loss and "complete statement of facts and circumstances surrounding such theft or loss." However Congress has passed no law authorizing ATF to make such a requirement, and at a 1984 Congressional hearing then ATF Director Stephen Higgins admitted there is no penalty for not complying. See "Armor Piercing Ammunition and the Criminal Misuse and Availability of Machineguns and Silencers", Hearings Before the Subcommittee on
Crime 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.
However, if one is a FFL holder, one is required by law to report the theft or loss to both local law enforcement and ATF. As part of P.L. 103-322 (Crime Bill) (effective 9/13/1994), 18 U.S.C. sec 923(g) was amended to require, "(6) Each licensee shall report the theft or loss of a firearm from the licensee's inventory or collection within 48 hours after the theft or loss is discovered, to the Secretary and to the appropriate local authorities."
ATF has created interim rules to implement P.L. 103-322, and they are a little more specific, and a little more onerous:
27 CFR Sec. 178.39a Reporting theft or loss of firearms.
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.
Sec. 178.129 Record retention.
* * * * *
(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.
* * * * * *
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.
This reporting requirement only applies to FFL holders, that is folks licensed by ATF to make, sell, import or collect guns. This does not include folks who just own an NFA weapon.
While it is illegal for anyone to have possession of an NFA firearm that is not registered to them, ATF haas carved out an exception for getting the guns repaired. In two writings of general circulation and availability, ATF has stated permission from them is not required in this situation. In ATF's "Federal Firearms Regulations Reference Guide," ATF P 5300.4 (01-00), on page 141, ATF writes: "(I5) May a licensed gunsmith receive an NFA firearm for purposes of repair?"
"Yes, for the sole purpose of repair and subsequent return to its owner. It is suggested that the owner receive permission from ATF for the transfer by completing and mailing ATF Form 5 to the NFA Branch and receive approval prior to the delivery. The gunsmith should do the same prior to returning the firearm."
"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."
(Emphasis added). This discussion was present in past editions of this publication as well.
Recently, similar advice was added to ATF's Internet Web page, at
http://www.atf.treas.gov/breakingnews/021800nfarepair.htm:
"Repair of NFA Firearms" "February 18, 2000"
"The National Firearms Act (NFA) Branch has received numerous questions concerning the repair of NFA firearms."
"The Bureau of Alcohol, Tobacco and Firearms (ATF) does not consider the temporary conveyance of an NFA firearm to a gunsmith for repair to be a "transfer" under the terms of the NFA. Thus, an ATF Form 5 application is not required."
"PLEASE BE AWARE THAT OTHER DISPOSITIONS, SUCH AS DEMONSTRATION OR SALE, ARE TRANSFERS AS DEFINED IN THE NFA AND MUST BE COVERED BY AN APPROVED APPLICATION TO TRANSFER AND REGISTER. TRANSFERS WITHOUT APPROVAL ARE VIOLATIONS OF FEDERAL LAW. ANY FIREARM INVOLVED IS SUBJECT TO SEIZURE AND FORFEITURE AND THE PARTIES TO THE TRANSFER ARE SUBJECT TO CRIMINAL PENALTIES OF UP TO 10 YEARS IMPRISONMENT."
"In order to avoid any appearance that a transfer has taken place, ATF strongly recommends that a Form 5 application be submitted for approval prior to conveying the firearm for repair. ATF believes this will provide protection to the parties involved as it will document the repair of the firearm and help ensure that a "transfer" did not take place. In addition, an approved Form 5 will assist Federal firearms licensees in establishing that their possession of the firearm is lawful."
"Accordingly, Item I5 in the 'Questions and Answers' section of ATF Publication 5300.4, Federal Firearms Regulations Reference Guide 2000, suggests that the owner obtain permission for the 'transfer' of the NFA firearm by submitting a Form 5 application and that the gunsmith do the same for the return of the firearm."
"Federal firearms licensees must record the acquisition and disposition of the firearm as required by Part 179, Title 27, Code of Federal Regulations."
One need not be an SOT to have NFA weapons transferred to him for repair. One does need to have a type 01 FFL to work as a gunsmith though. When submitting an optional Form 5 for repair, one checks the "Other" box in item 1, type of transfer, writes in "repair" next to the box, and submits a letter detailing what is to be done with the transfer in general terms, e.g. "The purpose of this transfer is to have [the weapon] refinished." The back of the form, with the certifications and photograph need not be completed. The turnaround time on Form 5's for this purpose seems to be at least a few weeks, or a minimum wait of a month or two, to transfer it to the 'smith and back. There is no transfer tax due.
A conviction for a violation of the NFA will result in a felony conviction, punishable by up to ten years in prison, and/or a $10,000 fine. See 26 U.S.C. sec. 5871. The U.S. Sentencing Guidelines ordinarily require prison time, even for a first offense with no prior criminal record, however various mitigating and aggravating factors can raise or lower the possible sentence range for a first offense.
The statute of limitations on violations of the NFA is three years. See 26 U.S.C. sec. 6531. The statute of limitations does not begin to run on possession offenses until the possession stops. As long as you possess the contraband item, you are in danger of being prosecuted.
In addition any NFA weapon EVER transferred or registered in violation of the Act is subject to civil forfeiture. See 26 U.S.C. sec. 5872. A forfeiture proceeding is separate from any criminal prosecution, and a resolution of a criminal proceeding in favor of the defendant will not preclude a forfeiture action. See U.S. v. One Assortment of Eighty-Nine Firearms, 465 U.S. 354 (1984). While the GCA was amended in 1986 to legislatively repeal Eighty-Nine Firearms (18 U.S.C. sec. 923(d)(1)), ATF has argued, and courts have agreed, that the protections in the GCA as to forfeiture do not 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).
A violation of 18 U.S.C. sec. 922(o) of the GCA can also bring up to a ten year prison sentence, and or a $10,000 fine. Again, prison time is likely, even on a first offense. Using a machine gun or a silencer in a crime of violence or drug crime can result in a sentencing enhancement of thirty years, even if there is no
NFA prosecution. See 18 U.S.C. sec. 924.
Additional info sources
A good source of information is the ATF publication, "Federal Firearms Regulations Reference Guide" ATF P 5300.4 (01-00). It has a green cover, and contains the text of the GCA, NFA, and the regulations promulgated under those laws, as well as other useful information. As required by the GCA (18 U.S.C. section 921(a)(19)), ATF also publishes a compilation of state laws, "State Laws and Published Ordinances-Firearms", ATF P 5300.5. The current edition is #22 - 2000. Both are free for the asking from
ATF. To get forms, or the books, you can write to ATF Distribution Center, P.O. Box 5950, Springfield, VA 22150-5950. Or phone them at (703) 455-7801. Your local ATF office may be able to supply them
also.
There is also a magazine covering NFA weapons, which also has information on the legalities, Small Arms Review. See their web page, http://www.smallarmsreview.com, or drop them a note at sareview@aol.com for more info. The author of this faq writes a column for the magazine, Legal Side, covering firearm laws and answering reader questions.
Some handy ATF phone numbers:
NFA Branch (202) 927-8330 - This is the office that handles all transfers 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 as well. Check with NFA Branch to be sure your faxed form will be acceptable and see ATF Ruling 89-1.
Technology Branch (202) 927-7910 - This is the office that makes all determinations as to whether something falls into one of the NFA categories, as well as determinations as to importability, and many other technical issues to things regulated by ATF (at least as to firearms).
Import Branch (202) 927-8320 - This office handles permits to import firearms, parts and other related items regulated by federal law.
As noted above one administratively imposed requirement for an NFA transfer to an individual is a certification from a chief law enforcement officer with jurisdiction over where you reside. This (and the cost of the gun) is what usually keep interested, and otherwise qualified, persons from obtaining one. This process is what the law and ATF regulations contemplate as the way to get a signoff, if you need one.
Step 1: You ask the following persons if they would sign; the local chief of police (if any), the local sheriff, the local district (prosecuting) attorney, the chief of the state police, and the state Attorney General. The CLEO can delegate the signing duty, for his convenience, if he wishes. Ask that they refuse in writing, if that is what they will do. You may be surprised, one might sign. That list of persons comes from 27 CFR sec. 179.85, which is the regulation that created the law enforcement certification requirement for Form 4's. 27 CFR sec. 179.63 is the companion regulation for Form 1's. The rquirement is NOT in any statute passed by Congress. Although not listed, and ATF will NOT designate federal officials as also acceptable (see below) other persons whose certification has been acceptable in the past include; local U.S. Attorney's, local federal judges, local U.S. Marshals, and local supervising F.B.I. agents. Other local federal law enforcement agents might also work. It is helpful, in general, to quote the certification text for the CLEO, or provide a copy of the form. That way they know what you are asking them to certify. For a Form 4 it reads, "I certify that I am the chief law enforcement officer of the organization named below having jurisdiction in the area of residence of (name of transferee). I have no information that the transferee will use the firearm or device described on this application for other than lawful purposes. I have no information indicating that the receipt and/or possession of the firearm described in item 4 of this form would place the transferee in violation of State or local law."
Step 2: Copy the refusal letters, and send the copies to the NFA Branch of ATF. Some CLEO's may refuse to even provide a response in writing. Just indicating that the CLEO refused to sign, and also refused to provide a written response, should be sufficient. Ask ATF to designate other persons whose signature would be acceptable, 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 the certification of a state judge who has jurisdiction over where you live (same as the chief, D.A. and sheriff in step 1, they have to have jurisdiction over where you live, although the regulation doesn't say that, just the Form 4) and who is a judge of a court of general jurisdiction, that is a trial court that can (by law) hear any civil or criminal case. No limit as to dollar amount in civil cases, or type of crime in criminal cases. No small claims court or traffic court type judges, in other words. Let's assume the judges refuse.
Step 3: get back to ATF, Send them copies of the rejection letters, if any, and ask that they accept a letter of police clearance, or a police letter saying you have no criminal record/history with them, in lieu of the certification, together with your certification that you are OK, and that the weapon would be legal for you to have where you live. They will either respond OK, or with more persons to try. If you reach the point where they will not accept the police clearance letter, and not designate someone who has not turned you down, you can sue, if the certification is for a Form 1, or the transferor (seller) on a Form 4 can sue.
There are several cases on this issue. The first is Steele v. NFA Branch, 755 F.2d 1410 (11th Cir. 1985), where the 11th circuit federal appeals court said a person trying to transfer a gun to one who was otherwise eligible to own the gun, but could not get the certification from anyone acceptable to ATF, could sue to force the transfer without it. In the Steele case (the plainitff was a potntial transferor in a Form 4 transfer) had not asked everyone acceptable to ATF, as well as not alleged, as part of his case, that the potential transferee was otherwise eligible by law to own the weapon, and the case was disposed of on those grounds. Note that the version of the regulation creating the certification requirement, reproduced in the footnotes of the Steele case, has a different list of acceptable persons. After some were named as defendants in the Steele case (including the then U.S. Attorney for the Miami, FL., area, Janet Reno, later anti-gun Attorney General during the reign of Pres. Clinton), all the federal law enforcement officials listed (U.S. Marshals and U.S. Attorney's) were removed from the regulation, supposedly at their request. See Federal Register, October 15, 1985, 50 Fed.Reg. 41680.
Correspondence from ATF indicates they will not designate any federal officials as other acceptable persons either. 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 said they could not tell if the reason he couldn't get the gun was an illegal requirement, the signoff, or his own failure to try and get a signoff. This certification is not really a big deal for the chief law enforcement officer (CLEO) making it, and it DOES NOT expressly make the CLEO legally responsible for the weapon or your use of it, or its theft. I have not heard of any successful lawsuit against a CLEO for signing the certification for a gun that was criminally misused.
That is, in my opinion, a spurious excuse for not signing. There is even one case addressing this issue that I am aware 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 sued the city that employed the cop. One of the grounds for suit was the police chief's having signed the transfer paperwork for the murder weapon. The court held that that claim should have been dismissed by the trial court. Without a showing by the plaintiff that somehow the act of signing was negligent (under Ohio law) and led to the harm (murder) complained of, there was no cause of action. Signing the form was not negligent in itself, nor was it a reckless or wanton act, as the trial court claimed the plaintiff could try to prove at trial. The case against the chief of police was later dismissed by the trial court. Although this case is only directly binding on federal courts in the area covered by the 6th circuit, and need not bind any state courts, the court recognized what common sense, and the certification say, the person signing does not open himself up to any liability by doing so.
The Searcy case is something to which you can point a CLEO who claims to refuse to do the signoff because of liability. Incidentally Stephen Halbrook, a leading lawyer in gun rights cases, and a longtime lawyer for the NRA, as well as an author, says in his Firearms Law Deskbook (published by Clark Boardman Callaghan) that this case is the only instance of a registered machine gun being criminally misused by its registered owner he is aware of. Other Avenues to NFA Ownership There are solutions to the law enforcement certification problem. They all require persistence, but less work than being a legitimate NFA dealer, in my opinion. Becoming a licensed dealer is one solution though. Another solution is to be incorporated. If you are already the owner of a corporation, as part of your business (doctor, lawyer or architect for example) your corporation can buy NFA weapons, and the photo, police signoff and fingerprints are not needed. Just a Form 4. The corporation might be buying weapons for 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 knowledgeable person about the downsides of being incorporated before just doing it, as well as any income or other tax consequences in your location. As the weapons are registered to the company, and not the owner of the company, they will have to be transferred out, tax paid (unless the transfer is otherwise exempt from the tax, ie from a government entity, or for an unservicable weapon), if the corporation is ever dissolved. As corporate assets, creditors might get them in the event of bankruptcy of the corporation, or a judgment against the corporation. In my opinion the best thing is to have the weapons owned and registered to the person who actually owns them, and not an intermediary. I also am aware that in some areas of the country the incorporation route may be the only way to own NFA weapons, as a practical matter.
Also be aware that corporations have no 4th amendment right against self- incrimination, and the restrictions the NFA law places on the use of information provided to ATF under the Act (26 U.S.C. sec. 5844) only apply to information provided by natural persons, not corporations. You are giving up some of the privacy provided by law to flesh and blood people when you acquire your guns through a corporation. Pretending you live in a jurisdiction where the CLEO will sign, when you do not, may be tempting, but cannot be recommended. ATF has prosecuted for this, claiming that putting a bogus address on the form is submitting false information to the feds, in violation of 26 U.S.C. sec. 5861(l). See U.S. v. Muntean, 870 F.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, and it is permissible to obtain NFA weapons at an address, when you are actually living there. For example, if you have a summer home, you may get NFA weapons when you are living there, and have the CLEO for that place do the signoff. During the rest of the year, when you live elsewhere, you may obtain the weapons at the second home.
As to surrendering your 4th amendment (search and seizure) rights, this is definitely true when one gets a Federal Firearms License. The law allows the ATF to inspect your records and inventory once every 12 months without any cause, and at any point during the course of a bona fide criminal investigation (18 U.S.C. sec. 923(g)). They may inspect without warning during business hours. The only modification of the above pertains to the C&R FFL (type 03) where ATF must schedule the inspection, (C&R FFL holders do not have business hours) and they must have the inspection at their office nearest the C&R FFL holders premises, if the holder so requests. ATF may look around the licensed premises for other weapons not on your records.
This means they take the position that if your licensed premises are your home they may search it, as part of the annual compliance inspection. The constitutionality of the warrantless "administrative search" of licensees provided for in the Gun Control Act has been upheld by the US Supreme Court, see U.S. v. Biswell, 406 U.S. 311 (1972). Biswell was partially overturned by Congress by 1986 changes to the requirements for a warrant under the GCA, but the administrative search provisions remain. In addition, if one is also a SOT, ATF claims to have the right to enter onto your business premises, during business hours, to verify compliance with the NFA. Their regulation to that effect is found at 27 CFR sec. 179.22. The regulation is apparently based upon 26 U.S.C. sec. 7606: 7606. Entry of premises for examination of taxable objects.
(a) Entry during day. 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.
(b) Entry at night. When such premises are open at night, the Secretary may enter them while so open, in the performance of his official duties.
(c) Penalties For refusal to permit entry or examination, see section 7342. 26 U.S.C. sec. 7342 provides for the penalty for a refusal to permit entry under section 7606: 7342. Penalty for refusal to permit entry or examination. 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. They claims this right extends to examining your business records, and firearms. This would only apply to your NFA firearms, although they could presumably examine other guns to make sure they were not NFA firearms, and subject to the law.
This is not subject to the controls found in the GCA, noted above, as the legal basis for the search is not found there. So they could claim a right to do this sort of search once a month, or once a week. I am not aware of any current abuse of the authority under this section. While the regulation made by ATF only applies this authority to SOT's, the statute itself is not so limited. At least one court case has suggested this power is available to search an FFL holder who is not an SOT. (U.S. v. Palmer, 435 F.2d 653 (1st Cir. 1970)). As to one who is neither a FFL nor SOT, but only owns weapons regulated under the National Firearms Act, ATF may only compel you to show an agent upon request the registration paperwork, that is the Form 1, 2, 3, 4, 5 or whatever else might have been used to register the weapon. See 26 U.S.C. sec. 5841(e). They do not have any right to compel you to produce the weapon. As always the Fourth amendment applies, and ATF may not enter your home or other place of storage of the NFA weapon, nor seize the weapon, without a warrant, or without falling under an exception the Supreme Court has created to the operation of the Fourth amendment, or without your consent.
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 to 12/01/68, although the paperwork backlog went on for a while after. ATF also permitted servicemen and other persons who could show they were overseas during the amnesty period, and that the weapon they sought to register was in the U.S. during the amnesty period, to register those weapons well after the amnesty period. The number of firearms ATF reports as having been registered during the 1968 amnesty goes up every year such statistics have been reported, since 1989 or so; however in 1975 ATF reported over 60,000 firearms registered during the amnesty, far more than they have reported since they began releasing annual statitstics on NFA registrations. According to 1995 numbers, 57,216 weapons were registered on Form 4467 ("Registration of Certain Firearms during November of 1968"), which was the amnesty registration form. This would have included weapons newly subject to registration, when they had not been before, like DEWAT's and destructive devices, as well as unregistered firearms that should had always been subject to the NFA, and been registered before, and were not.
There was also a registration period after the enacting of the first NFA, from July 26, 1934 up to September 24, 1934. Anyone in possession of an NFA weapon as of the July 26 date was supposed to register it, even if they no longer had it, on Form 1 (Firearms) in duplicate, with the local IRS office. No tax was due. This was not really an amnesty though, as the weapons were legal to have before the law was passed, at least under federal law. Before the changes to the NFA in 1968, a Form 1 was for a flat out registration of an existing gun, no tax. A Form 1A was for a tax paid making, in the way we understand a Form 1 now. Under various rules unregistered weapons were permitted to be registered, until 1971 or so. Some states had prohibited or regulated some NFA weapons before 1934. In fact the Uniform Machinegun Act, which provided for registration of machine guns, adopted in a few states (Conn., Va., Md., Ark., Ohio and South Dakota) was developed with the support of the National Rifle Association, partly in an attempt to forestall the sort of regulation the feds ultimately adopted in 1934. As always, compromise brings no relief - history has repeated that lesson over and over in the gun control context. Before the NFA was changed in 1968, as part of the Gun Control Act of 1968, one could register unregistered existing weapons, however it meant you were admitting to possessing an unregistered weapon. In fact the law required it, which was a reason the U.S. Supreme Court used in gutting the mandatory registration scheme of the pre-68 NFA in Haynes v. U.S., 390 U.S. 85 (1968). (It violated the 5th amendment right against compelling self-incrimination.)
However if there was no criminal intent to the possession (which tended 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 register it. ATT generally sent an investigator to check out what was going on, and if deemed appropriate, to help the applicant fill out the Form 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 until 1971, with the transferor instead of the transferee admitting to possessing an unregistered weapon, when applying to transfer it. The U.S. Supreme Court, in the case U.S. v. Freed, 401 U.S. 601 (1971), decided the amended NFA made existing unregistered weapons unregisterable, even voluntarily. The provisions mandating registration of existing (illegally possessed) weapons were removed from the NFA in 1968, among other changes. The Secretary of the Treasury 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 the Federal Register. There has never been one. ATF officials have stated they will never declare another Amnesty, because it would supposedly ruin all prosecutions in progress at the time, as well as increase the number of NFA guns overnight, because people will make guns that don't exist now, to register them.
In early 1994, ATF decided (in ATF Rulings 94-1 and 94-2) that three models of 12 gauge shotguns, the USAS 12, Striker 12, and Street Sweeper, were destructive devices, owing to their non-sporting character, and having a bore over 1/2 inch, as all 12 gauge shotguns do. ATF required owners of these guns to register them, as NFA weapons. This was not exactly an amnesty, as the weapons were not NFA weapons when made. This decision, as to the Striker 12 in particular, was upheld in a court challenge in the case Demko v. U.S., 44 Fed.Cl. 83 (Ct.Cl. 1999). By ATF Ruling 2001-1, ATF ended the amnesty for these shotguns as arbitrarily as it began, effective 5/1/2001. Any not registered now are unregisterable contraband. In all likelihood 18 U.S.C. sec. 922(o), the ban on civilian possession of machine guns registered after the law took effect, or never registered, precludes an Amnesty (as provided for under existing law) for machine guns. You could register a machine gun at a hypothetical amnesty, and comply with the NFA, but you would still be in violation of sec. 922(o), because the gun would have been registered after that law took effect. The penalties are the same under either law. One could register all other categories of NFA guns at an Amnesty. Congress would probably need to pass a law providing for an Amnesty, and override sec. 922(o) in that manner.
