From jbardwel@cassandra.cair.du.edu Mon Jan 9 10:35:33 1995 Received: from nova.unix.portal.com (nova.unix.portal.com [156.151.1.101]) by jobe.shell.portal.com (8.6.9/8.6.5) with ESMTP id KAA19973 for ; Mon, 9 Jan 1995 10:35:31 -0800 Received: from cassandra.cair.du.edu (cassandra.cair.du.edu [130.253.1.12]) by nova.unix.portal.com (8.6.9/8.6.5) with SMTP id KAA07685 for ; Mon, 9 Jan 1995 10:26:08 -0800 Received: by cassandra.cair.du.edu (AIX 3.2/UCB 5.64/4.03) id AA24680; Mon, 9 Jan 1995 11:26:52 -0700 Date: Mon, 9 Jan 1995 11:26:52 -0700 From: jbardwel@cassandra.cair.du.edu (JAMES O. BARDWELL ) Message-Id: <9501091826.AA24680@cassandra.cair.du.edu> To: chan@shell.portal.com Subject: NFA faq Status: RO **************************************************** Copyright by James Bardwell, 1994. 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 11/25/94. Nothing written here should be taken as legal advice. If you have a legal problem, 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 Any other weapons Destructive devices Sound suppressors (Silencers) State NFA restrictions GENERAL INFO ON NFA WEAPONS Abbreviations AOW - any other weapon ATF - Bureau of Alcohol, Tobacco and Firearms 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 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 (the main exception is machine gun conversion parts, like a registered HK sear). 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 (aka 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). 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, 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. 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 law enforcement, 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 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 dealer. 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 subesquent 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 transfer to an individual. Additionally the manufacturer of any NFA weapon, including an individual making one on a Form 1 must mark the receiver of the weapon with the maker's name and city and state. NFA Branch can grant exemptions from this for DD's. Corporations, including corporate type 01 FFL holders, are exempt from 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. 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. 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 also 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 unservicable weapon (sometimes called DEWAT, for DE-activated WAr Trophy), can be made servicable only by paying a $200 making tax, and filing a fully completed Form 1, marked "re-activation" at the top. Or a Class 2 manufacturer may file a Form 2 to register it as live, and the weapon will then have to be transferred on a Form 4 tax paid to individuals. As re-activating is considered manufacturing, the re-activator (as well as a de-activator) must mark his name and address (city and state) on the receiver. An FET is also due on the manufacturing as well, if it is not transferred by the re-activator tax paid (Form 4). Paying the $200 making tax on a Form 1 also supersedes any FET. 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 need to pay the $200 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, 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. 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 excepted from that those machine guns that were 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. An 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 a pre-86 import. The forms: 1 - "Application for Tax Paid Making and Registration of Firearm" 2 - "Notice of Firearms Manufactured or Imported" (used by a class 2 to tell ATF of the making of an NFA firearm) 3 - "Application for Tax-exempt Transfer of Firearm and Registration to Special (Occupational) Taxpayer" (transfers between SOT's) 4 - "Application for Tax Paid Transfer and Registration of Firearm" 5 - "Application for Tax-exempt Transfer and Registration of Firearm" (tax exempt transfer for another reason than a Form 3. This includes transfers to or from a law enforcement agency, or other governmental entity, transfers of unserviceable weapons, transfers for repair, and transfers to heirs.) 6 Part I - "Application and Permit for importation of Firearms, Ammunition and Implements of War" (for import of NFA or non-NFA firearm or accessory) 6 Part II - "Application and Permit for importation of Firearms (Military)" (for import of war trophies and similar guns by members of the Armed Forces) 6A - "Release and Receipt of Imported Firearms, Ammunition and Implements of War" (completed by Customs before release of stuff imported with a Form 6 part 1 or 2) 7 - I think this is the application for an FFL 8 - Not used, I think 9 - "Application and Permit for Exportation of Firearms" (for permanent NFA firearm export) 10 - "Application for Registration of Firearms (Government Entities)" (registration for an existing firearm by a law enforcement agency, for their use only. Existing NFA firearms that are not registered are contraband. Only law enforcement and governmental entities can register them, and they cannot be transferred to individuals.) 5320.20 - "Application to Transport Interstate or to Temporarily Export Certain NFA Firearms" (application to move an NFA weapon interstate, temporarily or permanently, or to temporarily remove an NFA weapon from the US). In lieu of this form (only) the person wishing to transport the weapons may instead submit a letter with the same information as required by the form, in duplicate. For all other transactions you are supposed to use the appropriate form. 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, 6, 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. 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, but it is probably prudent, especially if you wish to get NFA weapons transferred to you in the future. 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 quickly, assuming the purpose (generally stated) for the movement is legitimate, and the target state allows the weapon in question. A SOT 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, a few do not, and thus the SOT must make sure he will not be breaking any laws. An 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 SOT 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. Additionally a C&R FFL holder can move C&R NFA guns interstate without a 5320.20. See 18 USC sec. 922(a)(4) for the law. 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 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. 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 $29.95 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. It contains much of the information here, as well as the mechanics of operating as a SOT. Well worth the price also. Another good source of information is the ATF "Red Book" publication, "Your Guide to Federal Firearm Regulation", ATF P 5300.4 (6-88). Unfortunately the most recent edition is 1988-89, but it contains the GCA, NFA, and the regulations promulgated under those laws, as well as other useful information. ATF also publishes a compilation of state laws, "State Laws and Published Ordinances-Firearms", ATF P 5300.5 (10/94). This used to be called the "Green Book", as the former (1989) edition had a green cover. This one has a blue cover, perhaps it will be called the "Blue Book". 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 3 transfers in, as well as Form 5 transfers for repair, and probably others as well. Technology Branch (202) 927-7910 - This is the office that makes all deter- minations 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. 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. 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 enforcment 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." This certification is not really a big deal, and it DOES NOT expressly make them legally responsible for the weapon or your use of it, or its theft. I have not heard of any case of suit against a chief law enforcement officer for signing the certification for a gun that was criminally misused. That is, in my opinion, a spurious excuse for not signing. The chief can delegate the signing duty to an officer, if the chief wants. 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 is a case on this issue, Steele v. NFA Branch 755 F.2d 1410 (11 Cir 1985), where the federal appeals court said a person trying to transfer the 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 the potential transferee was otherwise eligible by law to own the weapon, and the case was thrown out. The Steele case is available from the rec.guns server, flubber.cs.umd.edu, via anonymous ftp, in the rec/Docs directory, as "steele.case". Other cases of interest to NFA owners are also there. 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 the time you put down on your application as 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 US v. Biswell, 406 U.S. 311 (1972). As to one who is not a FFL holder, 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 statistics in Machine Gun News, 57,187 weapons were registered on form 4467, which was the amnesty registration form. This would have included weapons subject to registration for the first time, like unserviceable weapons (DEWAT's) and destructive devices, as well as firearms that should have been registered before and were not. There was also some sort of free (no tax) registration period after the enacting of the first NFA, in 1934. 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. 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 old 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 often the ATT division of the Treasury Dept. would accept the application. The ATF (created out of the '68 GCA) 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 PL 90- 618, the 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 recently required owners of three 12 gauge shotgun models, the USAS 12, Striker 12, and Street Sweeper, to register them as destructive devices, owing to their non-sporting character. This is not exactly an amnesty, as the weapons were not NFA weapons when made, and while ATF is not requiring the payment of the $200 making/transfer tax, they are requiring the registrant obtain the law enforcement certification on the registration paperwork (Form 1). As this does constitute the addition of existing unregistered weapons to the Registry, 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. However the fact that ATF chose not to follow the law in changing the status of these weapons (either grandfather them, like 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) will cloud any attempts to prosecute persons possessing these weapons without having registered them. 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. 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 the gun had rifled barrel(s) of less than 16", and it did not have a shoulder stock it would be a pistol, unless it did not have a single grip. ATF has made the questionable decision that a handgun with more than one grip is an AOW. And no grip is pretty clearly 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. 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 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 signalling, 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. A grenade - is a DD A molotov cocktail - is a DD An M-79 or M-203 40mm grenade launcher - is a DD A smooth bore 37mm projectile launcher - not a DD. Not even a title 1 firearm. This falls under the signalling device exception, I believe. It is helped by the fact that no explosive ammo has ever been commercially made for it. A 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. A Flame Thrower - not a DD, nor even a firearm. Unregulated as to possession, under federal law. Great way to clear snow off the driveway. 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. 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 any component part of a sound suppressor. There is no thresh hold level of sound reduction for something to fall under this definition. ATF's working definition is 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. 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. 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 unservicable 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, incindiary or posion 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 MG's) AZ Y Y Y Y Y Y Y CA Y N Y Y Y Y Y (requires permit for mg,lbdd or expdd from state Dept. of Justice; no AOW pen guns; C&R sg, sr only) CO Y Y Y Y Y Y Y (requires state explosives permit for expdd) CT Y Y Y Y Y Y ? (no select fire mg's, full auto's only, after 1993 assault weapon ban) DE Y N Y N Y Y N (no smooth bore pistol AOW's, mg's for scientific or R&D purposes only) FL Y Y Y Y Y Y Y GA Y Y Y Y Y Y Y (no incindiary expdd's) HI N N N N N N N (A clean sweep!) IA N Y Y Y Y Y Y (only items 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 (licenses 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 ATF Green Book, no incindiary 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, sg) MS Y N Y Y Y Y Y MT Y N Y Y Y N N (some mg's must be registered) NE Y Y Y Y Y Y N NC N N N N Y N N (permit required for mg's, C&R FFL holders may have mg, si, sr, sg lbdd and expdd) ND Y Y Y Y Y Y Y NH Y Y Y Y Y Y Y NJ Y N Y N Y N N (mg requires permit from state AG) 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 incindiary 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 mg's; sg, sr for "scientific purposes" only) VT Y N Y Y Y Y Y WA N Y Y Y Y Y Y (silencer may not be used on a gun) WI Y Y Y Y Y Y Y (permit required for expdd, no incindiary expdd's; no pistol cal mg's w/o permit) WV Y Y Y Y Y Y ? WY Y Y Y Y Y Y ?