National Firearms Act
Pub. L.73–474 | |
Statutes at Large | 48 Stat. 1236 |
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Codification | |
Titles amended | 26 U.S.C.: Internal Revenue Code |
U.S.C. sections created | I.R.C. ch. 53 § 5801 et seq. |
Legislative history | |
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United States Supreme Court cases | |
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The National Firearms Act (NFA), 73rd Congress, Sess. 2, ch. 757, 48 Stat. 1236 was enacted on June 26, 1934, and currently codified and amended as I.R.C. ch. 53. The law is an Act of Congress in the United States that, in general, imposes an excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. The NFA is also referred to as Title II of the federal firearms laws, with the Gun Control Act of 1968 ("GCA") as Title I.
All transfers of ownership of registered NFA firearms must be done through the National Firearms Registration and Transfer Record (the "NFA registry").
Background
The ostensible impetus for the National Firearms Act of 1934 was the
Originally, pistols and revolvers were to be regulated as strictly as machine guns; towards that end, cutting down a rifle or shotgun to circumvent the handgun restrictions by making a concealable weapon was taxed as strictly as a machine gun.[7]
Conventional pistols and revolvers were ultimately excluded from the Act before passage, but other concealable weapons were not.[7] Regarding the definition of "firearm", the language of the statute as originally enacted was as follows:
- The term "firearm" means a shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition.[8]
Under the original Act, NFA weapons were machine guns, short-barreled rifles (SBR), short-barreled shotguns (SBS), any other weapons (AOW, i.e., concealable weapons other than pistols or revolvers), and silencers for any type of NFA or non-NFA weapon. Minimum barrel length was soon amended to 16 inches for rimfire rifles and by 1960 had been amended to 16 inches for centerfire rifles as well.[9]
NFA categories have been modified by laws passed by Congress, rulings by the Department of the Treasury, and regulations promulgated by the enforcement agency assigned, known as the Bureau of Alcohol, Tobacco, Firearms and Explosives or ATF.
Categories of regulated firearms
The current National Firearms Act (NFA) defines a number of categories of regulated firearms. These weapons are collectively known as NFA firearms and include the following:
- Machine guns
- "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. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person."[10]
- Short-barreled rifles (SBRs)
- Includes any firearm with a buttstock and either a rifled barrel less than 16" long or an overall length under 26". The overall length is measured with any folding or collapsing stocks in the extended position. The category also includes firearms which came from the factory with a buttstock that was later removed by a third party.
- Short-barreled shotguns (SBSs)
- Similarly to SBRs, but with either a smoothbore barrel less than 18" long or a minimum overall length under 26".
- Suppressors
- The legal term for a suppressor is silencer,gunsmithsin their shops which are large and usually bolted to the floor.
- Destructive devices (DDs) - (added to the NFA of 1934 by the Omnibus Crime Control and Safe Streets Act of 1968)
- There are two broad classes of destructive devices[poison gasweapons, etc.
- Any firearm with a bore over 0.50 inch except for shotguns or shotgun shells which have been found to be generally recognized as particularly suitable for sporting purposes. (Many firearms with bores over 0.50 inch, such as 10-gauge or 12-gauge shotguns, are exempted from the law because they have been determined to have a "legitimate sporting use".)
Any other weapon (AOW)
Firearms meeting the definition of "any other weapon", or AOW, are weapons or devices that can be concealed on the person and from which a shot can be discharged by the energy of an explosive. Many AOWs are disguised devices such as pens, cigarette lighters, knives, cane guns, and umbrella guns. AOWs can be pistols and revolvers with smooth bore barrels (e.g., H&R Handy-Gun, Serbu Super-Shorty) designed or redesigned to fire a fixed shotgun shell. While the above weapons are similar in appearance to weapons made from shotguns, they were originally manufactured in the described configuration rather than modified from existing shotguns. As a result, such weapons do not fit within the definition of shotgun or weapons made from a shotgun.[citation needed]
The AOW definition includes specifically described weapons with combination shotgun and rifle barrels 12 inches or more but less than 18 inches in length from which only a single discharge can be made from either barrel without manual reloading.
The ATF Firearms Technology Branch has issued opinions that when a pistol (such as an
In 1938, Congress recognized that the
Parts associated with NFA items
In general, certain components that make up an NFA item are considered as regulated. For example, the components of a silencer are considered as "silencers" by themselves and the replacement parts are regulated. However, the repair of original parts without replacement can be done by the original manufacturer, FFL gunsmith, or by the registered owner without being subjected to new registration as long as the serial number and the dimension (caliber) are maintained.[14] The length may be reduced in repair, but cannot be increased. Increasing the length is considered as making a new silencer. "Suppressor" is the term used within the trade/industry literature while the term "silencer" is the commonly used term that appears in the actual wording of the NFA. The terms are often used interchangeably depending on the source quoted.
Suppressors and machine guns are the most heavily regulated. For example, in Ruling 81-4, ATF declared that any AR-15 Drop-in Auto-Sear (DIAS) made after November 1, 1981 is itself a machine gun, and is therefore subject to regulation.[15] While this might seem to mean that pre-1981 sears are legal to possess without registration, ATF closes this loophole in other publications, stating,
Regardless of the date of manufacture of a drop in auto sear, possession of such a sear and certain M-16 fire control parts is possession of a machine gun as defined by the NFA. Specifically, these parts are listed as "(a) combination(s) of parts" designed "Solely and exclusively" for use in converting a weapon into a machine gun and are a machine gun as defined in the NFA.
ATF machine gun technology letters written between 1980 and 1996 by Edward M. Owen—the then-chief of the ATF technology division defined "solely and exclusively" in all of his published and unpublished machine gun rulings with specific non-ambiguous language.[16]
Owning for the parts needed to assemble other NFA firearms is generally restricted. One individual cannot own or manufacture certain machine gun sear (fire-control) components, unless, he owns a registered machine gun. The
Most current fully automatic trigger groups will not fit their semi-automatic firearm look-alike counterparts—the semi-automatic version is specifically constructed to reject the fully automatic trigger group by adding metal in critical places. This addition is required by ATF to prevent easy conversion of Title I firearms into machine guns.
For the civilian possession, all machine guns must have been manufactured and registered with ATF prior to May 19, 1986, to be transferable between citizens.[18] These machine gun prices have drastically escalated in value, especially items like registered sears and conversion-kits. Only a Class-II manufacturer (a FFL holder licensed to manufacture firearms or Type-07 license that has paid a Special Occupational Tax Stamp or SOT) could manufacture machine guns after that date, and they can only be sold to government, law-enforcement, and military entities. Transfer can only be done to other SOT FFL-holders, and such FFL-holders must have a "demonstration letter" from a respective government agency to receive such machine guns.[19] Falsification and/or misuse of the "demo-letter" process can and has resulted in long jail sentences and felony convictions for violators.
Owning both a short barrel and a legal-length rifle could be construed as intent to build an illegal, unregistered SBR. This possibility was contested and won in the U.S. Supreme Court case of
Removal of a weapon from classification as an NFA firearm, such as the reclassification of the original
Muzzle-loading firearms are exempt from the Act (as they are defined as "antique firearms" and are not considered "firearms" under either the GCA or the NFA). Thus, though common muzzle-loading hunting rifles are available in calibers over 0.50 inch, they are not regulated as destructive devices. Muzzle-loading cannon are similarly exempt since the law makes no distinction about the size of muzzle-loading weapons. Thus it is legal for a civilian to build muzzle-loading rifles, pistols, cannon, and mortars with no paperwork. However, ammunition for these weapons can still be classified as destructive devices themselves, such as explosive shells. While an 'antique firearm' is not considered a 'firearm' under the NFA, some states (such as Oregon) have laws that specifically prohibit anyone that could not otherwise own/obtain an GCA or NFA defined 'firearm' (i.e., felons, recipients of dishonorable discharge from military service, the mentally adjudicated, etc.) from owning/obtaining an 'antique firearm'.[23]
Individuals or companies seeking to market large-bore firearms may apply to ATF for a "sporting clause exception". If granted, ATF acknowledges that the firearm has a legitimate sporting use and is therefore not a destructive device. Certain large
The phrase "all NFA rules apply" is commonplace. This disclaimer is usually posted in bold print from firearm dealers holding an FFL license.
Registration, purchases, taxes and transfers
It is a common misconception
All NFA items must be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Private owners wishing to purchase an NFA item must obtain approval from the ATF, pass an extensive background check to include submitting a photograph and fingerprints, fully register the firearm, receive ATF written permission before moving the firearm across state lines, and pay a tax.[25] The request to transfer ownership of an NFA item is made on an ATF Form 4.[26] There have been several unfavorable lawsuits where plaintiffs have been denied NFA approval for a transfer. These lawsuits include: Lomont v. O'Neill,[27] Westfall v. Miller,[28] and Steele v. National Branch.[29]
NFA items may also be transferred to
The tax for privately manufacturing any NFA firearm (other than machine guns, which are illegal for individuals to manufacture) is $200. Transferring requires a $200 tax for all NFA weapons except AOWs, for which the transfer tax is $5 (although the manufacturing tax remains $200).[30]
All NFA weapons made by individuals must be legal in the State or municipality where the individual lives. The payment of a $200 "making tax" prior to manufacture of the weapon, although a subsequent transfer of AOWs after they are legally "made" is only $5. Only a Class-II manufacturer (a FFL holder licensed as a "Manufacture of Firearms" or Type-07 license that has paid a Special Occupational Tax Stamp or SOT) can manufacture NFA firearms (other than destructive devices) tax free, but they pay a larger annual tax which ranges from $500 to $1000 to cover manufacturing.[31]
A Destructive Device manufacturing license (Type-10 FFL) holder can manufacture destructive devices tax-free. However, a type-07 license costs $150 for three years –– whereas a Type-10 destructive manufacturing license costs $3000 for three years. Both licenses still require the payment of the $500 (reduced-rate) Special Occupational Tax Stamp or SOT, (or the $1000 full tax) per year to conduct manufacturing of NFA weapons that they are respectively qualified to manufacturer. The SOT "reduced rate" applies to a business whose sales are less than $500,000 per year.[32]
Transferable machine guns made or registered before May 19, 1986, are worth far more than their original, pre-1986 value and items like registered "auto-sears", "lightning-links", trigger-packs,
Upon the request of any ATF agent or investigator, or the Attorney General, the registered owner must provide proof of registration of the firearm.[34]
In a number of situations, an NFA item may be transferred without a transfer tax. These include sales to government agencies, temporary transfers of an NFA firearm to a gunsmith for repairs, and transfer of an NFA firearm to a lawful heir after the death of its owner. A permanent transfer, even if tax-free, must be approved by ATF. The proper form should be submitted to ATF before the transfer occurs. For example, lawful heirs must submit a Form 5 and wait for approval before taking possession of any NFA item willed to them. Temporary transfers, such as those to a gunsmith or to the original manufacturer for repair, are not subject to ATF approval since they are not legally considered transfers. ATF does, however, recommend filing tax-free transfer paperwork on all such temporary transfers, to confer an extra layer of legal protection on both the owner and the gunsmith.[30]
Criminal conduct
The Act makes certain conduct a criminal offense, in relation to engaging in business as a manufacturer, importer, or dealer with respect to (NFA) firearms without having registered or paid a Special Occupational Tax (SOT); receiving or possessing a firearm transferred to oneself in violation of the NFA; receiving or possessing a firearm made in violation of the NFA; receiving or possessing a firearm not registered to oneself in the National Firearms Registration and Transfer Record; transferring or making a firearm in violation of the NFA; or obliterating, removing, changing, or altering the serial number of the firearm.[35]
Criminal penalties
Violations of the Act are punishable by up to 10 years in federal prison and forfeiture of all devices or firearms in violation, and the individual's right to own or possess firearms in the future. The Act provides for a penalty of $10,000 for certain violations.[36] A willful attempt to evade or defeat a tax imposed by the Act is a felony punishable by up to five years in prison and a $100,000 fine ($500,000 in the case of a corporation or trust), under the general tax evasion statute.[37] For an individual, the felony fine of $100,000 for tax evasion could be increased to $250,000.[38]
Exceptions
The United States Supreme Court has ruled in Haynes v. United States that the Fifth Amendment to the United States Constitution exempts felons—and, by extrapolation, all other prohibited possessors—from the registration requirements of the Act. The prohibited person who violates the possession prohibition can, however, be convicted under the Gun Control Act of 1968 for being a prohibited person in possession of a (any) firearm.
The Atomic Energy Act of 1954 was amended in 2005 and includes a provision (42 U.S.C. § 2201a) to allow Nuclear Regulatory Commission (NRC) licensees and authorized contractors to possess machine guns for the purpose of providing security.[39][40]
The market for NFA items
Importation of NFA firearms was banned by the 1968
The domestic manufacture of new machine guns that civilians could purchase was effectively banned by language in the Firearm Owners Protection Act of 1986 (also known as "McClure-Volkmer"). The language was added in an amendment from William J. Hughes and referred to as the Hughes Amendment.[41] Machine guns legally registered prior to the date of enactment (i.e. May 1986) are still legal for possession by and transfer among civilians where permitted by state law. The static and relatively small number of transferable machine guns has caused their price to rise, often over $10,000, although transferable MAC-10 and MAC-11 submachine guns can still be purchased for around $8,000.[42][43] Machine guns manufactured after the FOPA's enactment can be sold only to law enforcement and government agencies, exported, or held as inventory or "dealer samples" by licensed manufacturers and dealers. Machine guns made after 1986 for law enforcement but not transferable to civilian registration are usually priced only a few hundred dollars more than their semi-automatic counterparts, whereas a pre-Hughes Amendment registered machine gun that can be legally transferred commands a huge premium.
The Hughes Amendment affected only machine guns. All other NFA firearms are still legal for manufacture and registration by civilians under Form 1, and transfer of registration to civilians via Form 4 (though some states have their own laws governing which NFA firearms are legal to own there).
NFA trust
An NFA
Miller case
In 1938, the United States District Court for the Western District of Arkansas ruled the statute unconstitutional in United States v. Miller. The defendant Miller had been arrested for possession of an unregistered short double-barreled shotgun, and for "unlawfully ... transporting [it] in interstate commerce from Claremore, Oklahoma to Siloam Springs, Arkansas" which perfected the crime.[49] The government's argument was that the short barreled shotgun was not a military-type weapon and thus not a "militia" weapon protected by the Second Amendment, from federal infringement. The District Court agreed with Miller's argument that the shotgun was legal under the Second Amendment.
The District Court ruling was overturned on a direct appeal to the
The Supreme Court reversed the District Court and held that the NFA provision (criminalizing possession of certain firearms) was not in violation of the Second Amendment's restriction and therefore was constitutional.
Subsequent rulings have been allowed to stand, indicating that short-barreled shotguns are generally recognized as ordinary military equipment if briefs are filed (e.g., see: Cases v. United States),[50] describing use of short-barreled shotguns in specialized military units.
See also
- Gun Control Act of 1968
- Firearm case law in the United States
- Gun law in the United States
- Gun politics in the United States
- Uniform Firearms Act
Notes
- ^ See http://legisworks.org/congress/73/publaw-474.pdf Archived 2016-07-05 at the Wayback Machine "This Act shall take effect on the thirtieth day after the date of its enactment."
- ^ See 26 U.S.C. § 5841.
- ISBN 9780765627452.
- JSTOR 1144246. Retrieved July 7, 2014.
- ^ a b "Introduction: History of the National Firearms Act". National Firearms Act Handbook. Bureau of Alcohol, Tobacco, Firearms and Explosives. April 2009. Archived from the original (PDF) on 2013-12-12. Retrieved 2013-12-07.
{{cite book}}
:|website=
ignored (help) - ^ a b "History of ATF from Oxford University Press". ATF.gov. Archived from the original on 2012-07-28.
- ^ ISBN 978-1-57607-268-4.
- ^ Section 1(a), Public Law No. 474, Ch. 757, 48 Stat. 1236 (June 26, 1934).
- ISBN 9780160564475.)
{{cite book}}
: CS1 maint: multiple names: authors list (link - ^ "U.S.C. Title 26 § 5845(b)". U.S. Government Publishing Office.
- ^ See 26 U.S.C. § 5845. See also 18 U.S.C. § 921.
- ^ Letter from Franklin Armory to Mr. Jay Jacobson (May 14, 2011) (archived from the original October 18, 2011)
- ISBN 978-0-676-60122-0.
- ^ "Frequently Asked Questions: Silencer". ATF.gov. Bureau of Alcohol, Tobacco, Firearms and Explosives.
- ^ "Nos. 97-3748, 97-3749. - UNITED STATES v. CASH - US 7th Circuit". Caselaw.lp.findlaw.com. Retrieved 2012-05-22.
- ISBN 978-1-4402-3284-8.
- ^ [1] Archived September 23, 2009, at the Wayback Machine
- ISBN 978-0-202-36941-9.
- ^ "NFA "Law Letter" Requirement". atf. 1999.
- ^ "ATF Ruling 2011-4" (PDF).
- ^ "ATF Rul. 2011-4" (PDF). July 25, 2011. Retrieved 2011-10-26.
- ISBN 978-0-7881-2821-9.
- ISBN 978-0-89689-455-6.
- ^ "National Firearms Act (NFA) | Bureau of Alcohol, Tobacco, Firearms and Explosives". www.atf.gov. Archived from the original on April 11, 2012.
- ^ "Home » Chief Law Enforcement Officer Required Sign Law Enforcement Certification ATF Form 1 Or ATF is the chief law enforcement officer required to sign the law enforcement certification on ATF Form 1 or ATF Form 4?". atf. 2013. Archived from the original on 2014-07-14. Retrieved 2014-07-09.
- ^ "ATF Form 4" (PDF). Retrieved 2012-05-22.
- ^ U.S. Court of Appeals for the Ninth Circuit (2002).
- ^ 77 F.3d 868 (5th Cir. 1996).
- ^ 755 F.2d 1410 (11th Cir. 1985).
- ^ a b c "National Firearms Act (NFA) — Firearms". atf. 2013.
- ^ "When must firearms special (occupational) taxes be paid and how much are the taxes?". atf. 1999. Archived from the original on 2014-07-14. Retrieved 2014-07-09.
- ^ "ATF Form 5300.11 Questions (Updated July 31, 2013)". atf. 2013. Archived from the original on October 10, 2013.
- ^ "NFA Firearms & Suppressors". Utah Carry Laws. Retrieved 2020-11-02.
- ^ "Record Keeping" (PDF). Archived from the original (PDF) on 2011-10-15. Retrieved 2011-10-26.
- ^ 26 U.S.C. § 5861.
- ^ 26 U.S.C. § 5871
- ^ 26 U.S.C. § 7201.
- ^ See .
- ^ "Open Letter to All Federally Licensed Dealers, Importers, and Manufacturers of Firearms and Ammunition". Bureau of Alcohol, Tobacco, Firearms, and Explosives. 2006-01-30. Retrieved 2011-10-26.
- ^ "42 U.S.C. § 2201a : US Code – Section 2201A: Use of firearms by security personnel". Retrieved 2011-10-26.
- ^ Gun Law News – Firearm Owners Protection Act of 1986, archived from the original on 2007-09-10, retrieved 2007-09-14
- ^ Machinegun: MAC-10 .45 ACP SMG, GUNS FOR SALE, GUNS-0122, archived from the original on 2016-01-08, retrieved 2020-04-27
- ^ US Machinegun: SWD M-11 9mm W Sten Conversion, GUNS FOR SALE, GUNS-0113, archived from the original on 2013-06-01, retrieved 2020-04-27
- ^ Goode, Erika (2013-02-26). "Trusts Offer a Legal Loophole for Buying Restricted Guns". New York Times.
- ^ a b "Bureau of Alcohol, Tobacco, Firearms and Explosives" (PDF). September 9, 2013.
- ^ Zuwerink, Adam (2016-02-01). "How the DOJ's New Regulatory Framework for Gun Trusts Managed to Strike a Reasonable Balance". JD Supra.
- ^ "View Rule". www.reginfo.gov. Retrieved 2015-12-17.
- ^ Smith, David & Chalabi, Mona (2016-01-06). "Little-known gun trust loophole facing closure by Obama executive action". The Guardian. Manchester, England.
- ^ Miller, at p. 175.[citation not found]
- ^ 131 F.2d 916, 922 (1st Cir. 1942).