II. laws
F. Class 3 (Machineguns, etc.) Firearm Information
1. General Guide to Class 3 Weapons
by James O. Bardwell (bardwell@netcom.com).
FAQ ON NATIONAL FIREARMS ACT WEAPONS
Copyright by James O. Bardwell, 1994, 1995, 1996, 1997. 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 1/2/97.
Nothing written here should be taken as legal advice. If you
have a legal problem, you should talk to a lawyer.
Table of Contents
General Info on NFA weapons
Obtaining the law enforcement certification
NFA weapons and the 4th amendment
NFA weapon amnesties
Machine gun sears and conversion parts
DEWATs
Any other weapons
Destructive devices
Sound suppressors (Silencers)
Short barreled rifles
Appendix - State NFA restrictions and a note about California
ATF Forms, compiled by Trenton Grale
GENERAL INFO ON NFA WEAPONS
Key to Abbreviations
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
USC - United States Code
DEWAT - De-activated war trophy
What are NFA Weapons?
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, firearm frames or receivers, and
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 (26 USC sec. 5801 et seq.), hence NFA. Title 1 is
generally called the Gun Control Act, (18 USC sec. 921 et seq.).
NFA weapons are 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 National Firearms Registration and Transfer
Record, which necessarily encompasses most of the NFA regulation.
NFA weapons are: machine guns, sound suppressors (a.k.a.
silencers), short barreled shotguns, short barreled rifles,
destructive devices and "any other weapons". 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
exclusively designed or intended for such a device (see
discussion below). A short barreled shotgun is any shotgun
(shoulder fired, smooth bore) 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 (shoulder fired, rifled bore) 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) is a explosive, incendiary or poison gas
weapon, or any firearm with a bore over 1/2", with exceptions for
sporting shotguns, among other things (see discussion below).
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.
Owning or making an NFA weapon
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 immediately
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 USC 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
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 the
section 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. 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 a 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 transaction 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, particularly any that have
tax stamps on them (Form 1 or 4) should be kept in a safe place.
ATF can demand to see the form (see below on your 4th amendment
rights). 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. You paid $200 (or $5) for it,
and it is worth that. It is unwise to lose the original form.
They should be kept in a safe deposit box. Tax exempt forms
(Form 2, 3, 5, 6, 10) have no tax stamp, and a copy of the form
from ATF, should the original be lost, will be fine. ATF can
give you a new tax stamp should you lose one, but expect a hard
time, and they have discretion in doing it. It is not unheard
of for ATF to have no record in their computer of a weapon
registered to you. The paperwork can avoid a lot of hassles.
Additionally, if the gun in question is a machine gun, not having
the paperwork can lead to being charged with a violation of 18
USC sec. 922(o). A federal circuit court of appeals has ruled
(U.S. v. Just, 74 F.3d 902 (8th Cir. 1996)) 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 such a
defense, but usually 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). 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.
Taxpayer privacy
The transfer paperwork is nominally a tax return; the
purpose of the registration, and the National Firearms
Registration and Transfer Record (Registry) is keeping track of
who owes the tax. ATF takes the position that taxpayer privacy
laws apply to a transfer form, and that they may not discuss a
pending transfer with anyone but the taxpayer, who 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). The NFA also prohibits the use
of the Registry information for any law enforcement purpose
except prosecutions for making a false statement on a transfer
form (26 USC sec. 5848). Other tax laws prohibit the release of
transfer information, as a tax return, except for certain narrow
public safety type circumstances. See 26 USC sec. 6103, for
example.
However, as most NFA weapons are also regulated by the GCA,
purchases from a dealer require 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. (18 USC sec. 923(g)(1)(D)).
Tax exemptions
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. Federal
government agencies, military, and National Guard need not comply
with the registration or tax requirements.
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. Unless the heir is a class 3 he
may not inherit post-86 machine guns (and would also need the
police demo letter, see below). I am unsure about a non-class 3
inheriting pre-86 samples (see below). A weapon to an heir may
also be transferred interstate, 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) under the NFA are
exempt from some of the making or transfer taxes. All SOT
holders may transfer weapons between themselves tax free.
However a transfer between an 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. 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 (9/14/94) 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 with regular firearms or
ammunition.
The classes of SOT holders
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.
If you were a Class 2 SOT, and thus a manufacturer of NFA
weapons you could make, tax free, a machine gun, silencer, short
rifle, short shotgun or AOW. You could also have weapons
transferred to you tax free, by other SOT's. You would also
have to have a type 07 or type 10 FFL. You would not need to
ask prior permission of ATF to make the weapon, you would notify
them of its making within 24 hours of its making by filing Form 2
with ATF. You could also import foreign made NFA weapons, for
R&D use (one of each, not a bunch of each model). To import a
machine gun you would need a police letter, but for other
weapons they would be considered pre-86 dealer samples. To
import for resale 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 tax on all
or some of the guns, although you will be entitled to a credit
against that for your annual $500 or $1000 SOT tax.
Special treatment of certain weapons
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 USC 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
law enforcement. These are commonly called post-86 machine
guns.
On top of the FOPA machine gun restrictions, any NFA
weapon imported into the US after the Gun Control Act took effect
(end of 1968) cannot be transferred to an individual. See 26 USC
sec. 5844. They can be transferred to SOT's, without any 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 any NFA weapon imported after 1968.
Transporting NFA firearms
In terms of moving the weapons around, the following
applies. If you are transporting the weapons within your state,
it is wise to keep a photocopy of the registration paperwork,
whatever it is, (can be Form 1, 2, 3, 4, 5, or 10, as well as
other more exotic forms of registration, except you probably
would never have a gun on a Form 10, unless you were the police,
in which case no one is likely to hassle you about a gun you
might have anyway) with the gun. Federal law does not expressly
require it, but it would be foolish not to have ready proof the
gun is legal. Many states do require it, they ban all or some
NFA weapons, and exempt from the ban 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 must you 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 moving.
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 target state allows the
weapon in question. A type 01 FFL 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 person
must make sure he will not be breaking any laws. An unlicensed
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. ATF will
also now approve a form 5320.20 for a period of one year,
covering blanket travel to a specific location, if you travel
there frequently. A C&R FFL holder can only move C&R NFA guns
interstate without a 5320.20. See 18 USC sec. 922(a)(4) for the
law imposing the 5320.20 requirement.
A lost or stolen NFA firearm
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 rare in crime. A
significant source of such weapons in crime is stolen NFA
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 PL 103-322 (Crime Bill) (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 PL 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.
Repairing NFA weapons
As it is illegal for anyone to have possession of an NFA
firearm that is not registered to them, getting the guns
repaired, or worked on, can be a hassle. There are two choices:
if the gunsmith is in the same state as the registered owner the
owner can take the gun in, and wait while it is worked on. If
the owner cannot wait, the gun must be transferred to the
gunsmith, on a Form 5, and returned to the owner by filing a Form
5 to transfer possession back to the owner. If one wishes to
have an out-of-state gunsmith work on the gun, even if the owner
can wait with the gun, the owner must either transfer it to the
gunsmith, or file the form 5320.20 to move it interstate to the
gunsmith. 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. NY, in a fit of benevolence,
allows licensed gunsmiths there to receive machine guns for
repair, when machine gun possession there is otherwise limited to
the police, and manufacturers with government contracts. When
submitting a 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 (generally, e.g. "The purpose of this
transfer is to have the [weapon] refinished.") what is to be
done. 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 month, or a minimum
wait of two months, to transfer it to the 'smith and back. There
is no transfer tax.
Penalties for NFA violations
A violation of the NFA can result in a felony conviction, punishable by
up to ten years in prison, and/or a $250,000 fine. See 26 USC sec. 5871.
The US Sentencing Guidelines ordinarily require prison time, even for
a first offense, 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,
with the possibility of extension of that time to six years for some
wilful violations. See 26 USC 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 USC 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).
A violation of 18 USC sec. 922(o) of the GCA can also bring up to a ten year
prison sentence, and or a $250,000 fine. Again, prison time is likely,
even on a first offense. Using a machine gun or a silencer in a crime
can result in a sentencing enhancement of thirty years, even if there
is no NFA prosecution. See 18 USC sec. 924.
In short, these are serious penalties. NFA regs are a pain,
and in my opinion, contrary to the Constitution. Ignore them,
and get caught, and you will pay a very high price.
Additional info sources
One of my main sources of information is a magazine called
Machine Gun News. It is quite good for sorting out the
intricacies of the law, as well as info on guns, suppressors and
other NFA stuff. Well worth a subscription, I think. Costs
$34.95 for a 1 year subscription (12 issues) from, P.O. Box 459,
Lake Hamilton AR 71951. Or call (501) 525-7514. They can take
your MasterCard or Visa over the phone. They also put out a
book called the "Machine Gun Dealer's Bible", by Dan Shea, for
$64.95 plus $4 shipping.
Another good source of information is the ATF publication,
"Federal Firearms Regulations Reference Guide" ATF P 5300.4
(10-95). It contains the GCA, NFA, and the regulations
promulgated under those laws, as well as other useful
information. Unlike the old "Red Book", (this has a yellow
cover), this one has the Crime Bill, and Brady law in it. It
also has the Brady regulations, and the interim Crime Bill
regulations. ATF also publishes a compilation of state laws,
"State Laws and Published Ordinances-Firearms", ATF P 5300.5
(10/94). Both are free from ATF. To get forms, or the books,
you can write to ATF Distribution Center, PO Box 5950,
Springfield, VA 22150-5950. Or phone them at (703) 455-7801. Or
your local ATF office should be able to supply them also.
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. Also 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.
GETTING THE LAW ENFORCEMENT CERTIFICATION
There are several 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 class 3 dealer is one solution though. Another solution is
to be incorporated. If you are a professional and are already
incorporated for your job (doctor, lawyer) 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 the weapons are registered to the
company, and not the owner of the company, they will have to be
transferred out, tax paid (unless they are going to a government
entity), 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.
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 USC 5861(l). See U.S. v. Muntean, 870 F.Supp 261 (N.D.Ind.
1994), for a case of such a prosecution. While you may have addresses
in several places, if you do not think you can make a credible
case that you live there (do you sleep there? Have a phone?
Utilities?) I think it is unwise to tell ATF you reside there,
for purposes of a transfer form.
However, the below 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, 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. Insist they refuse in writing, if that is
what they will do. You may be surprised, one might sign. Assume
they all refuse. 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. It 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 recent
past include; local U.S. Attorney's, local federal judges, local
U.S. Marshals, and local F.B.I. agents. Other local federal law
enforcement agents might also work, like DEA or ATF (imagine
accepting their own certification!) or Secret Service. The
federal law enforcement agents should probably be in a
supervisory capacity, like the head of the field office or
similar post.
It is helpful, in general, to quote the certification text,
that is 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. Ask them 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) 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 they refuse.
Step 3: get back to ATF, Send them copies of the rejection
letters, 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 two 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 case Steele (the
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 this
case, has a different list of acceptable persons. After some
were sued in connection with this case, all the federal law
enforcement officials were removed from the regulation.
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 case 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 a case addressing this issue,
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 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. Although this case is only directly
binding on the area of the 6th circuit, and need not bind 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 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 a note in Machine Gun News (3/95) this case is the only
instance of a registered machine gun being criminally misused by
its registered owner he is aware of. And it was by a police
officer.
The key to getting the LE certification is persistence.
NFA WEAPONS AND THE 4TH AMENDMENT
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
USC 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 USC 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 penalty for refusal to permit entry or examination, see
section 7342.
As 26 USC sec. 7342 provides for the penalty for a refusal to
permit entry under section 7606 it is worth a look:
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, the law seems
clear, but practice is a little murky. 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 USC sec. 5841(e). They do not
have any right to compel you to show them the weapon. However
they apparently (I have no first hand knowledge) take the
position that they can compel one to show ATF the weapon upon
request, even if the owner has no FFL. 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. They
should also need a warrant to compel a non-FFL holder to show
them the weapon, and I would insist upon that, myself.
AMNESTIES FOR UNREGISTERED NFA WEAPONS
As part of the new and revised 1968 National Firearms Act,
there was one amnesty where folks could register any NFA weapons.
It went from 11/02/68 to 12/01/68, although the paperwork backlog
went on for a while after. According to 1995 ATF statistics (the
number of firearms ATF reports as having been registered during
the Amnesty goes up every year, as ATF recompiles the 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 contraband firearms
that should have 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. Not really an amnesty though, as the weapons were
legal to have before the law was passed, at least under federal
law. 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., and Montana and possibly others) was developed with
the support of the
NRA, partly in an attempt to forestall the sort of
regulation the feds ultimately adopted in 1934. 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.
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 US Supreme Court used in gutting the registration
scheme of the pre-68 NFA in Haynes v. US, 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 US Supreme Court, in the case U.S. v. Freed, 401 U.S.
601 (1971), decided existing weapons were unregisterable. The
provisions for requiring 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 there will never be another
Amnesty, because it could 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 12 gauge shotgun models, 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 is not exactly an amnesty,
as the weapons were not NFA weapons when made. While ATF has not
required the payment of the $200 making/transfer tax to register
them, they had required the registrant obtain the law enforcement
certification on the registration paperwork (Form 1). According
to the 7/95 Machine Gun News, NFA Branch has now dropped the
requirement for the law enforcement certification on the initial
Form 1 registration, subsequent transfers will be by regular NFA
procedures. ATF began notifying owners of the guns on 2/1/94 of
the classification decision, and gave them 30 days to register
the weapon or dispose of it, after notice. Supposedly ATF
calculated the 30 days from when the last owner (they could
locate) of a weapon was notified. If you purchased the weapon
privately, and there was no "forward trace" paper trail, then you
may not have known when the 30 days began to run. However
according to Machine Gun News, as of 7/95 ATF is still accepting
registration applications. It would be wise to contact them
before assuming they will not let you register such a gun, and
either throwing it away, or just keeping it without complying
with the registration procedures.
As this does constitute the addition of existing
unregistered weapons to the Registry, in my opinion the
Secretary should have used the amnesty procedures in the 1968
GCA. He did not because he did not want folks to be able to
register any unregistered NFA weapon, there is not a procedure
for limiting the scope of an amnesty (although I suppose the
Secretary of the Treasury could have made one up, and let people
sue him). However the fact that ATF chose not to either
grandfather these shotguns, like they did with the open bolt MAC
style semi-autos, or pre 11/81 AR-15 drop in auto sears, or have
an amnesty, and require they be registered, in my opinion will
cloud any attempts to prosecute persons possessing these weapons
without having registered them.
In all likelihood 18 USC 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 it, and comply with the NFA, but you would still
be in violation of sec. 922(o), because the gun would have been
registered after the law took effect. The penalties are the same
under either law. One could register all other categories of NFA
guns at an Amnesty.
MACHINE GUN SEARS AND CONVERSION PARTS
The definition of "machinegun" in the NFA (26 USC sec.
5845(b) includes parts to convert a gun into a machine gun. Note
that conversion parts are not included in the definition of
"firearm" under the Gun Control Act, one of the few things I know
of 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 numerous statements from ATF, and the
definition of "firearm" under the GCA, which requires it be able
to expel a shot. However, at least one very slow 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). These parts are called registered sears, as well as
other parts or sets of parts to convert a gun into a machine gun.
In every case, the part(s) are installed into a
semi-automatic gun, and without any alteration to the semi-auto
gun's receiver, the new part(s) will allow the gun to fire as a
machine gun. As a general rule a sear conversion is less
desirable than an original gun, or a registered receiver
conversion. This is because if the registered 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 1986 ban. 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.
However for HK guns it is pretty much all there is,
especially if you want an MP-5 type gun. And if you want a
version of the Colt 9mm AR machine gun, the auto sear route is
more plentiful than the few registered receiver conversions, and
the even fewer factory Colt guns, as the model was introduced
(1985) right around the same time as the 1986 ban. And in
general the sear or other registered part is cheaper to buy than
the same gun as a registered receiver, both because you aren't
getting a gun also, and because it is less desirable. However
you may find that due to the escalating value of the semi-auto
host guns, the conversion part already installed in a host gun
may cost as much as a registered receiver conversion of the same
gun, like an IMI semi-auto UZI with a registered bolt installed
versus a registered receiver UZI conversion. It pays to shop
around.
A sear that does require alteration to the host gun's
receiver is not a conversion part, and is not able to be
registered as such. Some slipped by NFA Branch, 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, in effect converting them into receiver
conversions in the eyes of BATF. 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 info on 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 class 2's, 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 USC 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. This is how F.J. Vollmer keeps on cranking
out MP-5's even though the new making of MG's for civilians was
ended in 1986. 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 thumbhole 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.
The ability to move the sear or other parts between like
guns is a nice feature of the sear; you can have all your HK guns
be full autos, one at a time, and only have one registered item,
and one transfer tax to pay, for example. However each sear or
conversion kit may require a bit of fine tuning to the host gun
to make it work, this swapping feature may be overrated,
depending on the design of the sear and of the host gun.
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. This makes it easier on them, 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 H&K SP-89
pistol, or cutting the barrel of an HK-94 to less than 16 inches.
You may "divorce" the two, but don't if the host gun will end up
an unregistered short barreled rifle, or other unregistered NFA
weapon. Often 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.
Either scenario is a machine gun also, and also needs to be
registered. Except of course you cannot register it anymore, and
thus it is just a millstone, waiting to send you to a federal
prosecution. And that exact scenario has been the basis for many
prosecutions.
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 some of the M-2 parts
together, is a machine gun under the NFA. While the US Supreme
court decision in the Staples case should help to protect truly
innocent possessors of such things, you are playing with fire.
A registered sear is not a license to use it to convert any
gun you wish. BATF takes the position that installing a HK sear
in any gun but an HK, or a HK clone gun (like one of the Greek or
Portuguese G-3 semi-autos) is not allowed, and is making an
unregistered machine gun. So while you can put it in any HK type
gun, don't put it in something else, like an FNC or AK (it has
been done) thinking the sear is a license to convert any gun you
can shoehorn it into. Or if you want to do that, take BATF to
court first, don't just do it.
DEWATs
A DEWAT is an unserviceable gun that has an intact receiver,
thus, as of the GCA of 1968, 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 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 comes 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. The thing with buying a DEWAT is
that it may be easy to make it live, or it may be hard. The gun
may be pristine or rather beat up. They usually cost less than a
live gun because they will not be 100% original if made live.
However if you just want a shooter buying a DEWAT and getting it
made live can often be cheaper than an original gun. DEWAT guns
are best not bought sight unseen, unless you do not wish to make
it live, but have it as a wall hanger. The exact state and extent
of the welds will determine how hard it is to make live. However
if you want a wall hanger, a dummy gun is much cheaper, and
requires no paperwork. They can look totally authentic. They do
not have an intact machine gun receiver, but a partially machined
dummy receiver.
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 break the welds off the receiver, and install a
replacement barrel, or get the weld out of the barrel, if a spare
cannot be found. 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... They can be
stripped of parts, to make a parts set, and have the receiver
thrown away. Torch cutting the receiver into 4 or more parts
may be acceptable; you would have to contact ATF to find out the
current standard for "de-mill"ing (short for demilitarize) a
receiver; a de-milled receiver is not a firearm, it is scrap
metal. A receiver only cut in half may well not be scrap; ATF
has prosecuted folks where they could duct-tape together the
receiver and get the gun to fire. Best to check on this before
proceeding. The U.S. v. Staples, - U.S. - (1994), decision
should end such ridiculous prosecutions, now the feds must prove,
beyond a reasonable doubt, you knew the gun was subject to the
NFA, ie you knew it was a machine gun, that it could fire more
than one shot with a pull of the trigger, and so on. But even if
there were no prosecution, you could lose the receiver and or
parts to a forfeiture, if ATF though it was in fact a machine
gun, and it was not registered.
ANY OTHER WEAPONS
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 USC 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 some H&R
Handy Guns, 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 some
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.
If a gun has rifled barrel(s) of less than 16", and it has
never had a shoulder stock it would be a pistol, unless it either
has no grip at an angle to the bore, or if it has more than one
grip. ATF has made the questionable decision that a handgun with
more than one grip 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 court 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. Whether ATF will regard the
decision as binding beyond that case is unknown, I would doubt
it. The case is U.S. v. Davis, Crim No. 8:93-106 (S.C. 1993)
(Report of Magistrate, June 21, 1993). By the same token in mid
1996, ATF decided that "wallet" holsters for small guns, from
which the gun could be fired, somehow are AOW's. This would
affect, for example, the North American Arms mini-revolver and
the wallet holster NAA sold for the gun, as an accessory. ATF
seems to be thinking that the grip has disappeared, and thus it
fits into the first category. This strikes me as bizarre and
stupid, and I suspect the courts will have their shot at it,
given how common the wallet holsters are. What if you put the
gun in a purse, from which it can be fired? A folded up
newspaper?
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". I think that excluding handguns
designed to be fired when held in two hands is not necessarily
justifiable. But it allowed them to declare that an HK SP-89
pistol with a K grip is an AOW. As is an M-11/9 or TEC-9 with a
foregrip. The Auto Ordnance 1927-A3 pistol is apparently
exempted, for historical authenticity.
DESTRUCTIVE DEVICES
26 U.S.C. sec. 5845(f) "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 USC 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, I believe. 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.
SOUND SUPPRESSORS
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 USC 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); now the working definition
seems to be anything that traps gas from the muzzle of the gun,
or from porting of the barrel, is a sound suppressor. 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. It is what
they exist to do.
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? The mind reels.
SHORT BARRELED RIFLES
A short barreled rifle (
SBR) is defined in the law as:
26 USC 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 USC 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 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 Thompson/ Center Arms v. US, - U.S. - (1994)
ATF said it was a set consisting of a receiver, a 16"+ barrel,
a pistol grip stock, a shoulder stock, and a barrel less than 16
inches long. 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 long approved of converting a pistol into
a rifle, and then converting it back into a pistol, that was not
an issue. 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 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.
Therefore, if one has a semi-auto HK-91, and an HK-93
converted with an auto sear, and having a barrel less than 16
inches, one may not remove the sear from the HK-93 and put it on
the HK-91. That would leave the semi-auto pack from the HK-91,
and the receiver/barrel combination from the HK-93; a set of
parts for assembling a rifle, and said rifle would have a short
barrel, and further not be registered. I think that if one
disposed of all trigger packs one had, except the one the sear
was in, one could legally swap it between the rifles, without
having to register the HK-93 as a
SBR. The leftover HK-93
receiver and barrel setup would not be capable of firing a shot,
with the parts in the possession of the owner, except with the
sear converted pack, and using that on it would be OK. HOWEVER,
I think ATF would disagree, and would prosecute should such an
arrangement be attempted. If someone is serious about doing
this, they need to ask Technology Branch if they would agree with
the reasoning outlined. If they didn't, one would need to sue,
or run the risk of having to fight it in a criminal, rather than
civil, context.
APPENDIX
STATE NFA RESTRICTIONS
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
grandfathered 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 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 (A clean sweep!, the only
state like this)
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, basically the 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 ?
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 Y Y Y N (license for mg's required)
MD Y Y Y Y Y Y N (mg's must be registered)
ME Y Y Y Y Y Y Y
MI Y Y Y Y Y Y Y (apparently approved form 4
suffices for "license" for mg, si or some expdd (bomb) despite AG
opinion reprinted in ATF Green Book; 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, C&R FFL holders any mg, sr, sg)
MS Y N Y Y Y Y Y
MT Y N Y Y Y N N (pistol cal. mg's over .30
must be registered with state)
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) or must be for
"scientific or experimental purposes" for a mg, si, sr, sg lbdd
and expdd)
ND Y Y Y Y Y Y Y (fed. "licensees" required to
register mg's, si, expdd with state when possessed for
"protection or sale")
NH Y Y Y Y Y Y Y
NJ Y N Y 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 N N Y Y Y
NY N N N N ? Y N (some pen guns may be allowed)
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 N Y N N Y Y ?
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 cal mg's w/o permit)
WV Y Y Y Y Y Y ?
WY Y Y Y Y Y Y ?
------------------------------------------------------------
A Note about NFA Weapons and California
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.
Californians can legally possess any AOW, except a pen gun, as long
as it is possessed in compliance with federal law. 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 totally discretionary authority to issue permits
to possess DD's or machine guns. Civilians are totally prohibited
from owning silencers.
To get Calif laws, pending bills and other stuff
ftp to ftp.sen.ca.gov
Or ftp to leginfo.public.ca.gov, and look in /pub/code
/pub/code/pen has the penal code.
ATF Forms and Descriptions, by Category and Number
This information is correct as of 20 February 1995; compilation is
copyright (c) 1995 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.
ATF Forms (by Category)
Title II (All)
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
9 (5320.9 ) - Application and Permit for Exportation of Firearms
10 (5320.10) - Application for Registration of Firearms Acquired
by Certain Governmental Entities
5320.20 - Application to Transport Interstate or to
Temporarily Export Certain National Firearms Act
(NFA) Firearms
5630.6A - Special Tax Stamp [for SOT]
5630.7 - Special Tax Registration and Return: National
Firearms Act (NFA)
Title I Transfers
Form Title
----------------------------------------------------------------
3310.4 - Report of Multiple Sale or Other Disposition of
Pistols and Revolvers
4473 (5300.9) - Firearms Transaction Record
5300.35 - Statement of Intent to Obtain a Handgun(s)
Licensing
Form Title
------------------------------------------------------------------
7 (5310.12) - Application for License
7CR (5310.16) - Application for License (Collector of Curios and
Relics)
8 (5310.11) - Federal Firearms License
5300.34 - Questionnaire for Responsible Persons
5300.36 - Notification of Intent to Apply for a Federal
Firearms License
5300.37 - Certification of Compliance with State and Local
Law
Export/Import
Form Title
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6 (5330.3A) - (Part I) Application and Permit for Importation of
Firearms, Ammunition and Implements of War
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
ATF Forms and Descriptions (in Numerical Order by Form)
Form Title
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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
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
3310.4 - Report of Multiple Sale or Other Disposition of
Pistols and Revolvers
4473 Pt. I - Firearms Transaction Record - Over the Counter
(5300.9)
4473 Pt. II - Firearms Transaction Record - Non Over the Counter
(5300.9)
5300.34 - 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 - Certification of Compliance with State and Local
Law
5320.20 - Application to Transport Interstate or to
Temporarily Export Certain National Firearms Act
(NFA) Firearms
5630.6A - Special Tax Stamp [for SOT]
5630.7 - Special Tax Registration and Return: National
Firearms Act (NFA)
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[Note the difference between Federal Firearms License TYPE and
Special (Occupational) Taxpayer CLASS.]
Federal Firearms Licenses: Types, Fees, and Descriptions
[see 18 USC sec. 923(a), also ATF Form 7 and Form 7CR]
Note: these the ones that I know about; there are undoubtedly
others of which I am not aware.
Type Fee Description
---- ------ --------------------------------------------
01 $ 200 - Dealer, Including Pawnbroker, in Firearms Other than
/$90 Destructive Devices
02 - No longer used, was a Pawnbroker dealing in Firearms
other than Destructive Devices, eliminated by the
Brady law (1994).
03 $ 30 - Collector of Curios and Relics
04 - ? Either 4 or 5 was a dealer in ammunition,
eliminated by FOPA in 1986.
05 - ? No longer used.
06 $ 30 - Manufacturer of Ammunition for Firearms Other than
Ammunition for Destructive Devices or Armor Piercing
Ammunition
07 $ 150 - Manufacturer of Firearms other than Destructive
Devices
08 $ 150 - Importer of Firearms other than Destructive Devices
or Ammunition for Firearms other than Destructive
Devices, or Ammunition other than Armor Piercing
Ammunition
09 $3000 - Dealer in Destructive Devices
10 $3000 - Manufacturer of Destructive Devices, Ammunition for
Destructive Devices or Armor Piercing Ammunition
11 $3000 - Importer of Destructive Devices, Ammunition for
Destructive Devices or Armor Piercing Ammunition
20 $???? - Manufacturer of High Explosives [unconfirmed; see
February 1995 issue of Machine Gun News]
Note: fee is for a three year license. For a type 01 FFL it is $200
for the first three years, and $90 for subsequent renewals.
End-of-Document
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Originally Posted by Tungsten
