NFA Guide: What you need to know about Class III firearms

[BimmerFreak]

There are many very good NFA guides available on the internet, and this is an attempt to speed your search for accurate advice and information.

It is the responsibility of the reader to verify that the information contained in this thread is timely and still accurate.

I encourage members to consult their Local, State, and Federal officials if you have questions or concerns not addressed in this thread.

Official ATF Site: http://www.atf.treas.gov/firearms/rules/index.htm

ATF- NFA Branch:

National Firearms Act Branch

Bureau of Alcohol, Tobacco, Firearms, and Explosives

244 Needy Road, Suite 1250

Martinsburg, WV 25405

(304) 616-4500 (main number)

(304) 616-4501 (fax)

There are many good NFA guides out there.

Here is one we wrote for our customers:

(we tried to keep it short and simple...)

Those are illegal, right?

WRONG!!!! Here in the great state of Tennessee, just about any sort of firearm is perfectly legal to own, provided you go through the required government paperwork.

Way back in 1934, Congress passed the (very unconstitutional) National Firearms Act. This act required the registration of, and the excise tax on, certain types of firearms.

This tax was set for most types of registered weapons at $200.00...pretty steep for 1934, when the average cost of the taxed weapons was $10-30.

The good news is, its still $200.00, which isn't nearly painful these days. Well below the cost of the actual firearm in most cases.

This guide will go through the various types of NFA requlated items, often referred to as Class III firearms, and the process that regular folks can go through to own them.

Silencers:

More correctly referred to as sound suppressors, and often simply called "cans". The silencer is probably the most useful of all NFA firearms, and are considered firearms by law, even though they don't actually shoot bullets.

Suppressors can be purchased from NFA dealers (like HeroGuns) by any citizen eligible to buy a handgun.

The process is a little more complicated than the Instant Check, but still pretty straightforward;

Step 1:

Pick out the suppressor that you want, either something in stock or a model that we order in for you.

Because of the legalities involved, we require at least a 50% deposit on any NFA item ordered for a customer.

If the suppressor is in stock, or once it has physically arrived at HeroGuns, we can move to Step 2.

Step 2:

This is the labor-intensive part!

Now we can fill out an ATF Form 4, which is an application for a NFA tax stamp.

The questions are pretty much the same stuff that's on an ATF Form 4473 that you fill out to buy a gun, but you have to attach a few items:

-One is a 2" x 2" photograph, much like the one on a passport application. Just go ahead and smile, and don't wear your "Kill 'em all and let God sort 'em out" T-shirt that day!

-Another is a set of 2 fingerprint cards. Your local Sheriff's Department would be happy to get those done for you

(Remember; Sheriff's are elected), just give them a call and set up an appointment.

Speaking of your local Sheriff, you need to get a quick appointment with him or her anyway, because the Form 4 has to be signed by the Chief Law Enforcement Officer in your county.

The staff at HeroGuns know most of the local Sheriffs, and every Sheriff we have asked have said they have no problem signing these forms for the fine citizens of their respective counties.

-The final and most painful thing you have to send in with your Form 4 is a check to the ATF for $200.00.

Its a one-time fee for each NFA item you purchase, so you won't ever have to pay it again for your supressor, but will have to pay it for the Short Barreled Shotgun you buy the next month.

**One last thing about the Form 4; there's a question about the purpose for obtaining an NFA weapon.

I've had good luck with "...For collection purposes...", pretty much a polite way of saying "I'm not a criminal, so it's none of your business".

Once everything is gathered, we put it all in a big envelope and mail it Certified Mail to the ATF Licensing Center. On to Step 3!!!

Step 3:

This is, without a doubt, the worst part. Now you wait.

In the past, ATF has taken up to 6 months to process the Form 4 and get tax stamps back.

Recently, wait times seem to be be running closer to 5-8 weeks. Still too long, but definitely better.

During this time, the supressor sits in our safe, lonely and wanting to go home with it's new owner.

At any time you can pay the remaining balance and the supressor is yours, but it still can't leave our custody until your stamp gets back. If, by some chance, you go shooting with us, the suppressor can come along and you can shoot the bejeezus out of it.

But remember, it has to come back with us when we leave the range.

Just when you think you can't wait anymore, your stamp comes in. (It comes to us, by the way. So don't wear out the path to your mailbox looking for it)

We'll give you a call, inform you that your stamp has arrived, and then see how fast you can make it down to the shop.

Once you arrive, you fill out a Form 4473 (no background check or $10 fee is required) and you're a suppressor owner.

**Make copies of your tax stamp, and put the original in a very safe place. You need to have a copy of the stamp with you at all times when you have the suppressor. Enjoy!!

Short Barreled Shotguns and Rifles:

Often called "sawn-off" or "sawed-off" guns, the process of obtaining a SBS or SBR is at least as simple or potentially easier than obtaining a suppressor.

If we have a "shorty" in stock, or order one already made for you, the process for ownership is identical.

There is one exception to this, however; Some NFA weapons are classified as "Any Other Weapon" (AOW) items. Smoothbore pistols for example, are classified as AOWs.

This has led to several manufacturers building pistols on brand-new shotgun receivers, resulting in a big pistol that shoots shotgun shells.

The cool part is, buying an AOW is just like buying a suppressor, except the tax is only five bucks!!!

Now for the other big secret to short-barreled success:

YOU CAN DO IT YOURSELF!!!

Now, don't break out your hacksaw just yet, there's a little more to it than that.

A citizen can manufacture an NFA item (except for a machine gun) for his or her own use. You just have to fill out an ATF Form 1, Application to Make and Register a Firearm.

This form has the same required data, fingerprint, Sheriff sign-off, and photograph requirements as a Form 4, as well as some technical data about the firearm you're making; barrel length, caliber, serial number, etc.

You're also required to buy the same $200.00 tax stamp to manufacture your NFA item.

**Note: Don't even THINK about doing anything to your gun before you get your stamp back!!! ATF has ruled that even possessing the short barrel and the firearm is illegal until you have received your stamp.

Once you have your stamp back, you can cut/replace the barrel as described on the stamp, and enjoy your new and improved NFA item.

***Another note: If you ever want to sell your shorty, you can only sell it to or through a NFA licensed dealer.

(But we doubt you will ever want to sell it...)

Machine Guns:

I know, I know, enough already! What about the machine guns!!!

I know thats what you're thinking, and here's where the news isn't nearly as good.

Citizens can still own fully-automatic weapns, but there's a catch.

To be fully transferable, a machine gun had to be manufactured AND registered prior to May of 1986.

Naturally, since nobody can make and register new ones, and more and more people want the ones that are out there, prices have gone absolutly crazy!

A fully transferable M16 can sell for $10,000.00 to $15,000.00 these days.

Even cheaply made, stamped receiver guns like MACs are bringing $3,000.00 to $5,000.00!

So the good news is you can have one, but you probably don't want to pay for it.

If you do, however, the process for obtaining one is just like that for buying a suppressor. You pay the owner for the weapon, it gets sent here, we do the Form 4, we get the stamp back, you have a machine gun.

Conclusion:

So that's the basic overview. It's really not that big of a hassle to become the coolest kid on your block.

It's a lot less paperwork than buying a house, or even a new car. The paperwork only has to be filled out one time, and there's no recurring fee. Just the initial tax stamp purchase.

The best part is, the professional staff here at HeroGuns will walk you through every step of the process, and make everything as quick and painless as possible.

So go ahead and dream it up...and we'll make it happen at HeroGuns!

All Rights Reserved

Dan Overcast - 2007

HeroGuns

A longer NFA Guide that has been posted in the past on the internet:

NFA34 – A Historical Overview

In 1934, the United States was experiencing a growth in organized crime activities, as well as a rash of bank robberies, particularly in the Midwest. Criminals such as Al Capone, John Dillinger, “Pretty Boy” Floyd, “Machinegun” Kelly, and the infamous lovebirds Clyde Barrow and Bonnie Parker were becoming legendary. These men and women were often using fully-automatic weapons to commit their crimes. Events such as the “St. Valentine’ Day Massacre” of February 14, 1929 highlighted the ends to which criminals would go to conduct their business.

One of the more popular guns of these criminals was the Thompson Sub-Machinegun, a fully-automatic weapon which fires the .45 ACP round. Clyde Barrow was partial to the Browning Automatic Rifle, or BAR, a .30-06 caliber machinegun fed from a 20-round magazine. In 1929, a Thompson SMG sold for $175, with an extra $25 charged for models with a Cutt’s Compensator installed. The Thompson, or Tommy Gun, could be fed with a standard, 20-round box magazine, or either 50 or 100-round drums. The 50-round drums cost $21 in 1929, with a 100-round version costing $25. In Chicago, the criminal underworld bought many of their guns from a dealer named Peter von Frantzius. Von Frantzius would routinely remove the serial numbers from guns for a fee as small as $2. One of the Tommy Guns used in the St. Valentine’s Day Massacre was bought from von Frantzius’ sporting goods store.

When Prohibition was repealed in 1933, the United States Congress passed the National Firearms Act, correctly known as the Act of June 26, 1934. The goal was to go after organized crime by way of their guns of choice. The Act named several types of firearms, required their registration, and imposed taxes on their manufacture and subsequent transfer. The types of firearms named in the NFA are machineguns, short-barrel rifles, short-barrel shotguns, silencers (suppressors), destructive devices, and a catch-all category known as “Any Other Weapons,” or AOW’s. Many in the NFA community would argue that the National Firearms Act was passed simply as a way of keeping Federal Agents employed and as a way of making money for the U.S. government. It should be noted that crimes prosecuted under the NFA are technically tax crimes, as NFA 34 is actually a tax law. Prior to 9/11, the Bureau of Alcohol, Tobacco, and Firearms was a regulatory agency under the Internal Revenue Service.

Definitions according to NFA 34

Frequently, people refer to NFA weapons as “Class 3” guns. This is actually a misnomer. The National Firearms Act breaks firearms down into two basic categories: Title I and Title II. Title I guns are the guns with which most people are familiar, rifles, shotguns, and handguns. Title II guns are the aforementioned machineguns, silencers, short-barrel rifles, short-barrel shotguns, destructive devices, and “Any Other Weapons.” The confusion comes from years of misinformation, or lack of information regarding the definitions within NFA 34.

Commonly, dealers who buy, sell, and trade NFA Title II weapons are known as “Class 3 Dealers.” “Class 3” actually refers to a tax-payer status of federally licensed firearms dealers, or FFL’s. In order to deal in NFA Title II weapons, an FFL must pay an annual Special Occupancy Tax, or SOT. A Class 1 SOT is for a licensed firearms importer. A licensed manufacturer pays a Class 2 SOT, while a dealer pays a Class 3 SOT. The amount of the tax is mostly based on the class, with an additional factor being the gross annual sales of certain SOT’s. Since people wishing to buy an NFA Title II weapon most often buy them from dealers who are Class 3 SOT’s, they came to be simply known as “Class 3 dealers.”

Machineguns are defined by NFA 34 as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” It also includes parts kits and individual parts designed exclusively for use in a machine gun, or which allow a person to easily build a machine gun. Machine guns include those which fire fully-automatic as well as those which fire in multiple round bursts, such as an M-16A2. It also includes any parts which can easily be converted into a machine gun. These parts and parts sets are covered by a BATFE policy that once a gun is a machine gun, it is always a machine gun. A machine gun can not legally be retrofitted into a semi-automatic only weapon.

In addition to the NFA, there are two other pieces of legislation which govern the manufacture, importation, transfer, and ownership of machine guns. The first was the Gun Control Act of 1968, or GCA 68. This act made the civilian ownership of newly imported machineguns illegal. Dealers could own them for demonstrations to law enforcement agencies, however. Also, when the FFL surrendered their license, they could transfer these guns to their private collections. These guns became known as “Dealer Samples.” The second law was the 1986 Firearms Owner’s Protection Act, or FOPA 86. This law made it illegal to manufacture new machine guns for civilian ownership. It effectively closed the NFA Registry to new machineguns. Since May 1986, there have now been three classes of machine guns, “Fully Transferable,” meaning anyone can own one – these were imported prior to 1968, or manufactured in the U.S. before 1986, “Pre-86 Dealer Samples” – guns formerly known as Dealer Samples, and “Post-86 Dealer Samples” – guns which were imported or manufactured after FOPA 86 was passed. With the advent of FOPA 86 and the closure of the registry, the supply of transferable machine guns has remained at the level it was in 1986, with the loss of any guns destroyed in the meantime, with none added to the list. However, the demand for transferable machine guns has increased. As with all markets, when supply is limited and demand is increased, the price increases. This has caused machine guns which sold for next to nothing in 1986 to be worth as much as a new car. For example, a licensed manufacturer can build a new M-16 for less than $500. However, a 21-year old, transferable M-16 costs $9,000 to $15,000. Thompson SMG’s now sell for $14,000 to $24,000 depending on condition. That’s a big difference from the 1929 price of $175.

The next category of NFA Title II weapons are silencers, or, more correctly, suppressors. A silencer is a device which alters or muffles the gunshot of a firearm, or any part or parts designed exclusively to manufacture a silencer. When NFA 34 was written, silencers were readily available through mail order, at costs below $10 each. As the Great Depression was in full swing by 1934, there was concern by wildlife management folks that silencers would be used by poachers. Therefore, silencers were added to NFA 34, in order to control illegal hunting. Would you believe that silencers were invented by the same person who invented the muffler on your car, at the same time, and for the same general purpose, controlling noise pollution? Unfortunately, Hollywood has often demonized an effective safety device. In most of socialist Europe, where guns are often difficult to acquire, silencers are often sold inexpensively, over-the-counter, with as many controls as any other firearms accessory, such as a magazine. The use of silencers is looked upon as a means to protect the hearing of both the shooter and those in their vicinity. Why should the people around us, who aren’t taking part in our sport, have to suffer hearing loss because of us, when there is such an easy way to avoid that damage?

The National Firearms Act defines a rifle as a shoulder-fired weapon, which uses a rifled bore to discharge a shot. According to NFA 34, a Title I rifle has a barrel in excess of 18 inches, and an overall length in excess of 26 inches. A short-barrel rifle is a rifle with a barrel shorter than 16 inches, or an overall length less than 26 inches. Likewise, a shotgun is defined as a shoulder-fired, smooth bore firearm with a barrel in excess of 18 inches, and an overall length in excess of 26 inches. A short-barrel shotgun is a shotgun with a barrel shorter than 18 inches, or an overall length less than 26 inches. So, now you’re asking, “Why the differences in required barrel lengths?” Well, when NFA was written and enacted, the barrel lengths were the same, 18 inches. However, there were several manufacturers who were building .22 calibers rifles with 16 inch barrels, and they petitioned the government to change the law. In a moment of logical clarity, the government recognized that .22 caliber rifles were meant as sporting rifles, not as tools of the criminal trade, and changed the law accordingly.

Another category of Title II weapons is destructive devices, commonly referred to as DD’s. There are really two types of DD’s: explosive destructive devices, and large-bore destructive devices. Explosive DD’s include explosive, incendiary, or poisonous gas, grenades, bombs, and rockets containing a propellant charge in excess of four ounces, missiles with an explosive or incendiary charge of more than one-quarter ounce, mines, and similar devices. So, yes, you can own fragmentation grenades and Hellfire Anti-Tank Guided Missiles; so long as you pay the tax and BATFE approves of it. The second types of DD’s, large-bore devices, include weapons with barrel diameters in excess of one-half inch, except shotguns which BATFE feel have a sporting purpose. In recent memory, BATFE has ruled that shotguns such as the USAS-12, LAW-12 and Street Sweeper are destructive devices, requiring them to have been registered as such. Some other commonly seen destructive devices are M-203 and M-79 grenade launchers, mortars, and breach-loaded cannons. These are all legal to own, at least on the Federal level, as long as taxes are paid.

The last category of NFA Title II weapons are known as “Any Other Weapons.” Essentially, this is a catch-all category. They are defined within NFA 34 as: “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 barrel with a smooth bore designed, or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such 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, intended to be fired from the shoulder and not capable of firing fixed ammunition.” Some frequently encountered AOW’s include pen guns and cane guns. Others you might not be so familiar with include the Heckler & Koch Operational Briefcase for the MP-5K submachine gun, which allows an MP-5K to be fired from inside the briefcase, and the Serbu Super Shorty, which is a smooth-bore handgun built using Mossberg 500 or Remington 870 receivers (Author’s note: My company, Elite Tactical Systems, Inc. also manufactures AOW’s using 870 receivers.). Are you ready for an example of bureaucratic nonsense? North American Arms, a manufacturer of miniature .22 revolvers, built a wallet holster for their mini-revolvers. In 1997, BATFE ruled that since the gun could be concealed on the person and fired from within the holster, they must be registered as an AOW when used in conjunction with the wallet holster. There are also similar holsters on the market for High-Standard Derringers. When not used with the wallets, the guns are Title I weapons. But, even when in close proximity to one of the holsters, the guns are considered AOW’s.

Deciding what to buy.

And, now that you understand the various types of NFA Title II weapons, you’re wondering how do you get one, right? Well, at the Federal level, the process is not really as difficult as you might have believed. Now, keep in mind, these are the Federal laws, and the laws of the fifty States are as varied as the States themselves. I would encourage you to contact a knowledgeable FFL in your area, or your local BATFE field office, for questions about legality in your area. There are also several great resources on the internet; I’ll include a list of those web sites at the end of the article.

The first step is deciding what type of NFA weapon you want to buy. That decision can be one of the worst parts of the whole process. There are so many fun and interesting choices, where does one start? Do you buy a suppressor for the health care or environmental benefits, or maybe to use while hunting? Do you buy a machine gun for the teeth-jarring, belly-tingling excitement of it? (Anyone who’s been to the semi-annual Knob Creek Machinegun Shoot can attest to the excitement of being around full-auto weapons.) Do you get a machine gun as an investment? Do you get a short-barrel rifle or shotgun for the compactness of the weapon? Do you get several, just so you can be the cool kid on the block? (There’s absolutely nothing wrong with that reason.) Maybe you want to get into NFA weapons, but you don’t have an unlimited budget. Whatever your reason for getting an NFA weapon, it is fairly inexpensive to get one, except for most machine guns. (The least expensive machine guns are going to cost at least $3,000.)

If you still can’t decide, talk to your local dealer. They might have some good suggestions. Again, they can also help you know what’s legal to own in your area. Some States allow some NFA weapons, but disallow others. Others allow ownership, but restrict the use of them – such is the case with suppressors in Washington State. There are a myriad of choices, but don’t feel inundated. A good SOT can help you decide what will be the best use of your money.

Once you decide what you want, you have to find a seller. It is legal, according to Federal law, to purchase an NFA weapon from an unlicensed (non-FFL) individual. If the seller is a resident of your home State, the two of you can do the paperwork yourselves, without needing to use the services of an SOT. If the seller is from out-of-State, you’ll need to transfer the weapon through an FFL / SOT in your State. This is the case regardless of whether the weapon comes from an out-of-State FFL or from an unlicensed person in another State. Another option, except in the case of a machine gun, is to build it yourself. The process to build an NFA weapon is very similar to buying one, but using a different form.

The transfer process.

The first form used in buying the NFA weapon is a BATFE Form 5320.4, commonly called a Form 4, which is done in duplicate. On this form, the seller identifies the weapon, its manufacturer, serial number, and length, both overall and barrel. The seller than records their name and address, and signs the form. The buyer writes in their name, address, and county of residence on the front of the Form 4. On the back, they answer a few questions very similar to a Form 4473 – the standard “Are you a felon, and are you a drug user?” questions. The seller then tells BATFE why they want the weapon. Most people use the phrase “Collection and Investment Purposes.” In most situations, it doesn’t matter what you say, as long as it’s a legal reason. I’ve heard of people putting down things like “Because chicks dig them.” For residents of North Carolina, your State law requires you to use the phrase “Research and Development Purposes.” Once that is accomplished, the buyer attaches a 2”x2” passport photo to each copy of the Form 4. Afterwards, you need the local Chief Law Enforcement Officer (CLEO) to sign your paperwork. By signing it, they are affirming that they have no reason you are going to do anything illegal with the weapon, and that they are legal in their jurisdiction. The CLEO can be the local Chief of Police, County Sheriff, or District or State Attorney; or any representative that is approved by BATFE.

Not all CLEO’s will sign Form 4’s, for an assortment of reasons. Many don’t believe that civilians should be allowed to own NFA weapons. Others don’t realize that they are even legal. Still others falsely believe they are assuming some form of liability by signing the paperwork. Or, maybe you opposed the Sheriff in the last election, and they have a strong memory. Or, maybe they just don’t like you personally. Whatever their reason, they decide not to sign. Luckily, in my home State of Tennessee, State law requires them to sign within 15 working days as long as they have no information that you are going to break the law or would be restricted from owning a weapon. Basically, in Tennessee, as long as you can buy a handgun, the CLEO can’t deny you an NFA weapon. For those of you in other States, there are other options besides the CLEO’s signature, and I will cover that a little later.

The next piece of paper is the Certificate of Compliance. It is essentially a form where you write your name twice and your country of citizenship. Then, you sign it and date it. That’s it. The easiest form you’ll sign in the whole process. You do one copy of the Certificate of Compliance per NFA weapon.

Next, you get two sets of fingerprints taken, on standard government fingerprint cards. Your FFL / SOT might do them for you, but you might have to have the local Police or Sheriff do them. Whoever takes the prints, it is important that the ORI box on the cards reads thusly: WVATF0800, ATF – NFA Branch, Martinsburg, WV. If the ORI box doesn’t contain that information, your prints will likely get lost in the system.

Once you have your Form 4’s filled out with passport photos attached and the CLEO signature on them, the Certificate of Compliance is signed, and your fingerprints are completed, you’re ready to proceed. Now, you write a check to BATFE. For manufacturing any NFA weapon, or for transferring most NFA weapons, the check will be for $200 per NFA weapon. The exception is for transferring an AOW. The transfer tax on an AOW is only $5 per weapon. This tax is a one-time tax per weapon. You do not need to send in an annual payment. You do, however, have to send in payment any time you buy another NFA weapon. The money is a tax paid on a background check. The background check is done each and every time you buy or transfer ownership of an NFA weapon. (There are tax-free transfers, such as if you inherit an NFA weapon from a parent.) Once the check is written, drop it and your paperwork into an envelope and mail it to the BATFE. The current address for Form 4’s is: BATFE, NFA – Branch, PO Box 530298, Atlanta, GA 30353-0298.

Now comes the hard part – the wait! Take solace, the wait is much shorter than it was in year’s past. Currently, the wait is down to approximately 5-8 weeks. It used to be over a year for some folks. When I bought my first three NFA weapons, in 2004-2005, I waited five months for each of them. The NFA Branch office was formerly located in Washington, DC. A few years ago, they moved to Martinsburg, WV. The move sped up the process dramatically. Whatever the reason, it was a welcome change. I should also take the opportunity to tell you that the legal examiners at NFA Branch are some of the most helpful government employees I’ve ever encountered. Contrary to misinformed opinion, the folks in Martinsburg are our friends, and go above and beyond to be helpful. There have been numerous times when I’ve had to call up there and ask a question. Without the help of people like Kenneth Houchens and Barbara Payne, I’d be lost.

Once your Form 4 is approved, the examiner will put a tax stamp on it, sign it, and return a copy to the seller or transferor. Once they get the stamped Form 4, they are allowed to give you the weapon. If you are getting the weapon through an FFL / SOT, they are required to have you complete a Form 4473, as it is the form used to record the transaction in their files. If the transfer is for nothing but NFA weapons, they do not have to go through the process of a NICS check, they just fill out the form, sign it, and file it away.

Building it yourself.

For most NFA weapons, it is legal to build one yourself. The only exception is a machine gun. Due to the 1986 FOPA, it is illegal to build a new machine gun for private, civilian ownership. With minimal machining or gunsmith skills and equipment, you can build your own silencer, SBR, SBS, AOW, or DD. Before you do so, however, you have to have BATFE approval. This is done by filing a BATFE Form 5320.1, or Form 1. The Form 1 is similar to a Form 4, but easier. Since you are the maker of the weapon, there is no transferor to sign the paperwork. You fill in your name, address, and description of the firearm you’re building, along with the serial number you’ll be using. In the case of an existing firearm, such as turning an AR-15 into a short-barrel rifle (SBR) you must list the original manufacturer’s info, and use their serial number. Like a Form 4, you must submit passport photos, CLEO signatures, a Certificate of Compliance, and fingerprint cards. Unlike Form 4’s, Form 1’s are mailed to: BATFE, NFA – Branch, 244 Needy Road, Martinsburg, WV 25401.

Once the Form is approved, stamped, signed, and returned to you, you may build your weapon. It is important to note that NFA 34 requires the manufacturer of an NFA weapon to engrave the weapon. There has been a lot of speculation if this is required when a non-licensed individual submits a Form 1 to turn a Title I gun, such as an AR-15, into an NFA Title II weapon. I have seen letters from BATFE which go both ways, requiring engraving, and not requiring it. It is important that you realize a BATFE letter is only legally valid for the person to whom it is addressed. It is my recommendation that you err on the side of caution and engrave your weapon. You won’t be getting fined for engraving it, but there’s the possibility you could get fined for not doing so. The engraving must be readily visible on the firearm. In the case of an AR-15, that means it can’t be under the pistol grip or handguards.

After the transfer / build is complete.

You’ve finally taken possession of your first NFA weapon, or completed your build. So, now what happens? There is a lot of misinformation out there about certain aspects relating to owning an NFA weapon.

One common misconception is the belief that you give up your rights to search and seizure, and that BATFE agents may inspect your home at will, with no need for a warrant. That is patently false. You do not give up your rights. If an agent of the BATFE wants to enter your home, they must have a warrant, or probable cause that a crime is being committed. Simply owning a registered NFA weapon is not probable cause. And, if BATFE agents want to enter your home, you must have been doing something you shouldn’t have been doing in the first place. BATFE agents are busy folks. They don’t have the time to go out and inspect the paperwork of every NFA weapon in this country. They’ve got more important things to do with their time.

Now, if a BATFE agent asks to see your registration paperwork (Form 1 or 4), you are required to show it to them. For that reason, you always keep a copy with the weapon. Don’t carry the original around with you. Make several photocopies, and place the original wherever you keep important documents, such as your will, birth certificates, etc. Place photocopies with the weapon, in your gun safe, in the range bags you use, and in the vehicle you take to the range. You might also consider making a miniature copy, laminating it, and keeping it in your wallet.

What about storage requirements, or letting someone borrow the weapon? Well, the only real storage requirement is that you store the weapon in such a way so that it is inaccessible to anybody but the registered owner. You don’t have to go out and buy a bank vault. A simple gun cabinet will do, or a case, as long as it locks and you’re the only one with a key or combination to the lock. Since you must maintain control of the weapon, you are not allowed to loan it to someone to take to the range. If you’re there at the range, and able to maintain control over the weapon, you may let others use it. I recommend you let as many others as possible shoot it. That’s the best way to spread the NFA gospel, and educate more people about the truth.

Special NFA considerations.

There are times which don’t fit the normal procedures of NFA ownership. I’ll try to answer some of the more common concerns here.

It is possible to purchase or manufacture an NFA weapon as part of a corporation or trust. Doing so has several advantages. One of these advantages is the ability to bypass the need for passport photos, fingerprints, and most often the important consideration, the CLEO signature. If your CLEO won’t sign for whatever reason, you can use a trust or corporate transfer to circumvent them. Another advantage is the ability for more than one person to have access to the weapon. When a trust or corporation owns an NFA weapon, officers of the corporation or members of the trust may take the gun to the range. So, if you and your spouse, sibling, parent, child, or other trusted friends want to share ownership, maybe a corporate or trust transfer is the route for you.

Another frequent concern regards traveling with an NFA weapon. It is legal to cross State lines with your NFA weapon, as long as the weapon is legal in your State of destination. However, with most NFA weapons, you must notify BATFE in advance. This is done using a BATFE Form 5320.20. You should submit the form at least a few weeks in advance, in order to give BATFE time to complete the process. What they are doing is verifying for you that the weapon is legal where you visiting. The exceptions to the need for a 5320.20 are suppressors and AOW’s; they don’t require the form to be filed. However, it is a good idea to do so, if for no other reason but peace of mind that your weapon is legal, and that you can prove it, if stopped by an unaware police officer. So, if you want to take your machine gun to Knob Creek each April and October, just file the paperwork and bring your gun.

What if you have to move to a place where NFA weapons are illegal? Well, BATFE understands that that happens from time to time. It happens a lot to military service members who have to deploy overseas or to another stateside assignment. In those situations, you are allowed to store the weapons securely, as long as you notify BATFE about it. The weapons can be stored in a bank safe deposit box, or at a friend or family member’s house, as long as they are kept in a room or safe that only the registered owner can access. If you’re faced with such a situation, and have a friend or relative you trust, you might consider placing your gun safe in their basement, garage, or a spare corner, and take the keys with you. Just be sure to notify BATFE about the storage situation. Of course, you can also sell your NFA weapons to another person. You’ll have to ensure that you can be present when the transfer is completed. That might be difficult if you’re overseas.

NFA and age requirements

What about an age requirement for buying or making NFA weapons? For many years, it was incorrectly assumed that you had to be 21 in order to possess an NFA weapons. While you are required to be 21 in order to purchase an NFA weapon from a licensed dealer, you don’t have to be 21 to make or own one. Those of you between 18 to 21 years of age can thank an intelligent young man in Florida for that. He did some reading of the NFA 34 and the GCA 68, and noticed a few things. The GCA outlines age requirements for buying firearms from an FFL. For instance, you must be 18 to buy a rifle or shotgun, but must be 21 to buy a handgun from an FFL. The young man then got to thinking, and wrote BATFE a letter.

At first, he asked about the legality of building his own short-barrel rifle, or SBR. His premise was that he could buy a Title I AR-15 from an FFL at age 18, and there was no age requirement in NFA 34 regarding making an SBR. So, could an 18-year old buy an AR-15 and then file the Form 1 necessary to build an SBR? Surprisingly, BATFE wrote back saying that he was correct, he could do exactly that. So, he filled out the Form 1, using a trust, to avoid any difficulties with the CLEO, and included a copy of his letter to BATFE, and a copy of their reply. The Form 1 was approved, and he built the SBR.

His next step was to inquire about the legality of a person 18-20 years of age buying an NFA weapon from an unlicensed resident of his State. Again, GCA states the requirements for buying from an FFL. If the weapon were bought from a non-FFL resident of the same State, there is no requirement to go through an FFL / SOT. A little less surprising this time, BATFE again agreed – he could legally buy an NFA weapon from a non-licensed resident of his State, even though he was less than 21 years old. So, he found someone willing to sell him a suppressor, and he bought it. Again, the Form 4 was approved, and he took possession of his suppressor.

One important thing to note about BATFE Forms and those less than 21-years of age: the forms contain a question which asks if the transferee (the buyer) is 21 years old, or older. You must answer the question truthfully. However, that answer is not going to deny you your weapon, as long as you are not buying from an FFL / SOT.

So, there you have it, a reasonably detailed description of the National Firearms Act and the process necessary to own an NFA Title II weapon. It wasn’t quite as intimidating as you thought it would be, was it? Hey, before I learned how to do it, I was intimidated about learning to drive a car. It just took driver’s education and practice to get used to it.

Another NFA Paper:

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.

* * * * *

( 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.

( 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.

© 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( 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® (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 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 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

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© "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 ( lists exemptions to the application of (a).

Subsection ((7) of section 12020 exempts any "firearm or ammunition"

lawfully possessed under federal law and on the C&R list.

Subsection ((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 ©(1)

and ©(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 © 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

-----------------------------------------------------------------

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

------------------------------------------------------------------

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)

------------------------------------------------------------

[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

Links to other NFA info and/or Guides:

http://www.ar15.com/forums/topic.html?b=6&f=20&t=222460

http://www.quarterbore.com/library/p...edriflefaq.pdf

www.titleii.com

http://www.peoplesdemocracy.org/nfa.shtml

http://publicrights.org/NFA/index.html

http://www.deadbangguns.com/NFA/index.html

Edited April 22, 2008 by BimmerFreak

[Guest canynracer]

Holy CRAP!!!! nice veeeerrryyyyyy NICE!!! Thanks!!!

[Guest flyfishtn]

Now that is comprehensive!! Thank you for posting that, it answers a lot of my questions!!

[Urse]

Thanks. Great Post!

[TGO David]

Joe, Dan...

I am choosing to use a Revocable Trust for my SBR project and subsequent suppressor purchase. My wife and I are both named as trustees of the Trust.

When submitting the materials to the BATFE, do we need to provide a 2x2 photo and pair of fingerprint cards for each of us or just one of us?

Trying to get this all together prior to the CMMG SBR registered lowers arriving and thought perhaps others who use a Trust for their purchases might benefit from this information as well.

Thanks.

[BimmerFreak]

You dont need ANY photos or print cards.

Also, personal checks will slow your NFA trust paperwork up.

Try to send a company check or certified funds to speed things up.

[Guest Phantom6]

Joe, Dan...

I am choosing to use a Revocable Trust for my SBR project and subsequent suppressor purchase. My wife and I are both named as trustees of the Trust.

When submitting the materials to the BATFE, do we need to provide a 2x2 photo and pair of fingerprint cards for each of us or just one of us?

Trying to get this all together prior to the CMMG SBR registered lowers arriving and thought perhaps others who use a Trust for their purchases might benefit from this information as well.

Thanks.

It plainly says the following:

It is possible to purchase or manufacture an NFA weapon as part of a corporation or trust. Doing so has several advantages. One of these advantages is the ability to bypass the need for passport photos, fingerprints, and most often the important consideration, the CLEO signature. If your CLEO won’t sign for whatever reason, you can use a trust or corporate transfer to circumvent them. Another advantage is the ability for more than one person to have access to the weapon. When a trust or corporation owns an NFA weapon, officers of the corporation or members of the trust may take the gun to the range. So, if you and your spouse, sibling, parent, child, or other trusted friends want to share ownership, maybe a corporate or trust transfer is the route for you.

Your browser should have a search feature that will point you to things you'd like to find in a long and involved post like the word "trust" or "photos" and such above. Mine does.

[Guest Verbal Kint]

This will definitely come in handy in the coming days/weeks as my only local Class III dealer folded up shop and went strictly Police K-9 training, grooming, equipment.

So I'll be purchasing a normal lower, and then applying for it to be registered as an NFA item so I can build my SBR. That said, having been gone for 7 yrs in the military and having all new chief LEOs in office, I'm not sure how eager they would be on signing off on the forms. May have to go the Trust route.

This is (potentially) going to be a major headache... I can already tell. :-\

[TGO David]

It plainly says the following:

Your browser should have a search feature that will point you to things you'd like to find in a long and involved post like the word "trust" or "photos" and such above. Mine does.

I'll be sure to avail myself of such technological wonders the next time I encounter a thread, provided I am able to think of the proper key words to isolate the information I'm searching for.

[Guest Phantom6]

This will definitely come in handy in the coming days/weeks as my only local Class III dealer folded up shop and went strictly Police K-9 training, grooming, equipment.

So I'll be purchasing a normal lower, and then applying for it to be registered as an NFA item so I can build my SBR. That said, having been gone for 7 yrs in the military and having all new chief LEOs in office, I'm not sure how eager they would be on signing off on the forms. May have to go the Trust route.

This is (potentially) going to be a major headache... I can already tell. :-

IMOH, the Trust is the simplest and best way to go since anyone of the trustees can carry and use the firearm(s) named therein and you not only have to be present to supervise but you don't have to screw with all the CLEO, photo and fingerprint stuff. Much "cleaner" all the way around. You can add folks to the trust and remove folks from it and it doesn't affect your firearm.

[Guest Phantom6]

I'll be sure to avail myself of such technological wonders the next time I encounter a thread, provided I am able to think of the proper key words to isolate the information I'm searching for.

Always glad to be of assistance.

[Guest Verbal Kint]

IMOH, the Trust is the simplest and best way to go since anyone of the trustees can carry and use the firearm(s) named therein and you not only have to be present to supervise but you don't have to screw with all the CLEO, photo and fingerprint stuff. Much "cleaner" all the way around. You can add folks to the trust and remove folks from it and it doesn't affect your firearm.

I agree. I was thinking about that last night. I plan to go that route for that sole reason... so the wife can pick up and use the firearm whenever she needs/wants as well.

[MCFooter]

Has anyone seen a short list for creating a NFA Trust similar to the original post?

I would do an internet search now but this is one of two gun websites my employer has not blocked.

[TGO David]

Has anyone seen a short list for creating a NFA Trust similar to the original post?

I would do an internet search now but this is one of two gun websites my employer has not blocked.

I took the cheap route and used Quicken Willmaker software to draft my Revocable Trust naming both me and my wife as trustees and naming my children as beneficiaries should something horrible happen to the both of us. In the event that neither of them are 21 years of age, the NFA items go to an executor for safe keeping until they become of legal age.

Tennessee does not require that a Revocable Trust be registered with the court. So it is as simple as drafting the papers and signing them in the presence of a notary, then having the notary execute their duties and notarize the documents.

Hint: If you use Willmaker, export the document to a Rich Text File (RTF) and then bring it back into MS Word or similar software and edit it so that the name of the trust isn't just "Joe Blow's Revocable Trust" but rather "Joe Blow's NFA Revocable Trust" so that the document has a meaningful name that distinguishes it from any other trusts that you may establish later.

I simply searched for every instance of "Joe Blow and Jane Blow's Revocable Trust" in the document and replaced it with the NFA version as described above.

In order to activate the trust you should assign a piece of serialized real property to it. Some people take a single dollar bill, note the serial number of that dollar bill in the trust as the real property. Later property assignments are made by amending the document with the appropriate form.

I just added an old handgun of no practical value to our trust and established the trust in that fashion.

Hope that helps?

[MCFooter]

Tungsten, Thanks for the Quick and detailed response.

Your response seems simplier than I had thought it might be. My only (Main) question comes in with the definition of "Real Property" and your example of a Dollar. I was thinking "Real" property was land so I broke down and used the search function and found this...

http://www.answers.com/topic/real-property?cat=biz-fin

Law Dictionary: Real Property

Land, including the surface, whatever is attached to the surface such as buildings or trees, whatever is beneath the surface, such as minerals, and the area above the surface, i.e., the sky. Burby, Real Property §§8-11 (3rd ed. 1965). See fixture.

Originally, the distinction between real property and personal property did not depend upon the nature of the property, but rather depended upon the action by which rights in the property were vindicated. This distinction later evolved into the definition of real property as excluding personal property (which consists of chattels, or movable goods).

An interest in a leasehold is sometimes treated as real property because it concerns land or buildings, and is sometimes treated as personalty because of its contractual nature. See Brown, The Law of Personal Property 10-11 (3rd ed. 1975).

I hope you're correct and a Dollar bill will meet the requirement but courious if you have discussed this with a lawyer or anything?

Thanks,

Mike

[TGO David]

If real property were only to be interpreted as land, then no one would be able to use a Revocable Trust to purchase NFA items. If you're particularly worried, I'd use something like a rifle or a handgun that you don't mind transferring into the ownership of the trust.

[Guest Mugster]

While i think the definition of real property is correct, I believe you can use a trust or a corporation to hold personal property as well. Its probably better if the property is serialized.

I do think you should give an attorney whatever it takes to make sure you are in compliance with state law.

I'm interested in this. Does anyone know a lawyer that does this or has done trusts for NFA items?

Edited June 28, 2008 by Mugster

[Magiccarpetrides]

Alright so say you want to purchase an SBR'd AR from someone that paid the $200 stamp when they SBR'd it...whats the actual process?

[BimmerFreak]

You will need to file a Form 4 (see NFA Guide for specific steps) with ATF, wait for it to approved, and then take possession of the SBR

Added:

Regardless of the fact that the original owner paid tax on a NFA item, a new 200.00 tax will need to be paid each and every time the item is transfered.

*with a few exceptions; transfer to a lawful heir at time of death, to a LE dept, etc.

Edited July 3, 2008 by BimmerFreak

[Magiccarpetrides]

Joe,

Thanks for the quick info...is the form 4 pretty much the same thing I filed for the 870 AOW? Would we require an FFL to go through since the ATF has to send the "ok" back to somewhere?

[Guest jwp]

Joe,

Thanks for the quick info...is the form 4 pretty much the same thing I filed for the 870 AOW? Would we require an FFL to go through since the ATF has to send the "ok" back to somewhere?

Form 4 would be the one.

Why couldn't they just send it back to you? You're someone who is somewhere, aren't you?

[Magiccarpetrides]

I was under the impression that all SBR's/NFA items had to pass through an FFL

[Guest jwp]

I was under the impression that all SBR's/NFA items had to pass through an FFL

Nope.

[Magiccarpetrides]

I appreciate your quick response...thanks a lot!

[Guest jwp]

There are certain caveats though, such as in the case of an out of state purchase which would have to go through an FFL, but if you own a rifle and want to register it as an SBR you simply need to follow the instructions, file the forms and pay the tax.

There are a lot of "smoke and mirrors" ideas out there. I'm just trying to clear up the air best I can.