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National Firearms Act

The National Firearms Act, 73rd
Congress, Sess. 2, ch. 757, 48 Stat. 1236, enacted on June 26, 1934,
currently codified as amended as I.R.C. ch. 53, is an Act of Congress in the
United States that, in general, imposes a statutory excise tax on the
manufacture and transfer of certain firearms and mandates the registration
of those firearms. The Act was passed shortly after the repeal of Prohibition.
The NFA is also referred to as Title II of the Federal firearms laws. The Gun
Control Act of 1968 is Title I. All transfers of ownership of registered
NFA firearms must be done through the federal NFA registry. The NFA also
requires that permanent transport of NFA firearms across state lines by the owner
must be reported to the Bureau of Alcohol, Tobacco, Firearms and
Explosives. Temporary transport of some items, most notably silencers, do not
need to be reported. Background
The impetus for the National Firearms Act of 1934 was the gangland crime of
the Prohibition era, such as the St. Valentine’s Day Massacre of 1929, and
the attempted assassination of President Franklin D. Roosevelt in 1933. Like the
current National Firearms Act, the 1934 Act required NFA firearms to be
registered and taxed. The $200 tax was quite prohibitive at the time. With a
few exceptions, the tax amount is unchanged.
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. Conventional pistols and revolvers were
ultimately excluded from the Act before passage, but other concealable weapons
were not. 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as originally enacted was as follows: The term “firearm” means a shotgun or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.
Under the original Act, NFA weapons were machine guns, short-barreled rifles,
short-barreled shotguns, any other weapons, and silencers for any type of
NFA or non-NFA. 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. The United States Supreme Court, in 1968
decided the case of Haynes v. United States in favor of the defendant, which
effectively gutted the National Act of 1934. As one could possess an NFA
firearm and choose not to register it, and not face prosecution due to Fifth
Amendment protections, the Act was unenforceable. To deal with this,
Congress rewrote the Act to make registration of existing weapons
impossible except by the government. In addition to fixing the defect identified
in Haynes, the revision tightened definitions of the firearms regulated by
the Act, as well as incorporating a new category of firearm, the Destructive
Device, which was first regulated in the Omnibus Crime Control and Safe Streets
Act of 1968. 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 to known as
the Bureau of Alcohol, Tobacco, Firearms and Explosives or BATFE.
Categories of firearms regulated The National Firearms Act of 1934
defines a number of categories of regulated firearms. These weapons are
collectively known as NFA firearms and include the following:
Machine guns—this includes any firearm which can fire more than 1 cartridge per
trigger pull. Both continuous fully automatic fire and “burst fire” are
considered machine gun features. The weapon’s receiver is by itself
considered to be a regulated firearm. A non-machinegun that may be converted to
fire more than one shot per trigger pull by ordinary mechanical skills is
determined to be “readily convertible”, and classed as a machinegun, such as a
KG-9 pistol. Short-barreled rifles—this category
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—this category is
defined similarly to SBRs, but with either a smoothbore barrel less than 18″
long or a minimum overall length under 26″.
Suppressors —this includes any portable device designed to muffle or disguise
the report of a portable firearm. This category does not include non-portable
devices, such as sound traps used by gunsmiths in their shops which are large
and usually bolted to the floor. In October, 2015 Arizona Congressman Matt
Salmon introduced the Hearing Protection Act to remove suppressors from the NFA.
Destructive Devices—there are two broad classes of destructive devices:
Devices such as grenades, bombs, explosive missiles, poison gas weapons,
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.
=Any other weapon=Firearms meeting the definition of “any
other weapon” or AOW are weapons or devices capable of being concealed on
the person from which a shot can be discharged through 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
having smooth bore barrels 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 illustrated
configuration and are not modified from existing shotguns. As a result, these
weapons do not fit within the definition of shotgun or weapons made from a
shotgun. 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 BATFE Firearms Technology Branch has issued opinions that when a pistol is
fitted with a vertical fore-grip, it is no longer “designed, made and intended
to fire … when held in one hand,” and therefore no longer meets the definition
of a pistol. Such a firearm then falls only within the definition of “any other
weapon” under the NFA. In 1938 Congress recognized that the
Marble Game Getter, a short .22/.410 sporting firearm, had “legitimate use”
and did not deserve the stigma of a “gangster weapon” and reduced the $200
tax to one dollar for the Game Getter. In 1960 Congress changed the transfer
tax for all AOW category firearms to $5. The transfer tax for machine guns,
silencers, SBR and SBS remained at $200.=Parts associated with NFA items=
In general, certain components that make up an NFA item are considered regulated.
For example, the components of a suppressor are considered as
“suppressors” 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 registered owner without subjected to
new registration as long as the serial number and the dimension are maintained.
The length may be reduced in repair, but cannot be increased. Increasing the
length is considered as making a new suppressor. Suppressor is the term used
within the trade/industry literature while the term ‘silencer’ is the term
used 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, BATFE declared that any
AR-15 Drop-in Auto-Sear made after November 1, 1981 is itself a machine
gun, and is therefore subject to regulation. While this might seem to
mean that pre-1981 sears are legal to possess without registration, BATFE
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 machinegun 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
machinegun and are a machinegun as defined in the NFA.” ATF machinegun
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 machinegun rulings with
specific non-ambiguous language. Owning the parts needed to assemble
other NFA firearms is generally restricted. One individual cannot own or
manufacture certain machine gun sear components unless he owns a registered
machine gun. The M2 carbine trigger pack is such an example of a “combination of
parts” that is a machinegun in and of itself. Most of these have been
registered as they were pulled from stores of surplus rifles in the early
1960s. In some special cases, exceptions have been determined to these by the
BATFE. A string or shoelace that could be looped around the cocking handle of a
semiautomatic firearm and then behind and in front of the trigger in such a
way as to allow the firearm to be fired automatically is no longer considered a
machinegun unless it is attached in this manner.
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 the ATF to prevent easy
conversion of Title I firearms into machine guns.
For civilian possession, all machineguns must have been manufactured and
registered with the ATF prior to May 19, 1986 to be transferable between
citizens. These machinegun prices have drastically escalated in value,
especially items like registered sears and conversion-kits. Only a Class-II
manufacturer could manufacture machineguns 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 machineguns. 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 United States v. Thompson-Center Arms
Company. BATFE lost the case, and was unable to prove that possession of a
short barrel for the specific pistol configuration of a Thompson Contender is
illegal. The BATFE later released ruling 2011-4 to clarify the legal status of
owning such conversion kits. Removal of a weapon from classification
as an NFA firearm, such as the reclassification of the original
Broomhandle Mauser with shoulder stock from “short barrel rifle” to a curio or
relic handgun, changed its status as a Title II NFA firearm but did not change
its status as a Title I Gun Control Act firearm.
Muzzle-loading firearms are exempt from the Act. Thus, though common
muzzle-loading hunting rifles are available in calibers over 0.50″, they
are not regulated as destructive devices. Muzzle-loading cannons are
similarly exempt since the law draws no distinction between the size of the
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 have laws that specifically prohibit anyone from
owning/obtaining an ‘antique firearm’ that could not otherwise own/obtain an
GCA or NFA defined ‘firearm’. Individuals or companies seeking to
market large-bore firearms may apply to the ATF for a “sporting clause
exception”. If granted, the ATF acknowledges that the firearm has a
legitimate sporting use and is therefore not a destructive device. Certain large
safari rifle calibers, such as .585 Nyati and .577 Tyrannosaur, have such
exceptions. 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 that an
individual must have a “Class 3 ” in order to own NFA. An FFL is required as
a prerequisite to become a Special Occupation Taxpayer: Class 1 importer,
Class 2 manufacturer-dealer or Class 3 dealer in NFA, not an individual owner.
Legal possession of an NFA firearm by an individual requires transfer of
registration within the NFA registry. An individual owner does not need to be an
NFA dealer to buy Title II. The sale and purchase of NFA is, however, taxed and
regulated, as follows: All NFA items must be registered with
the Bureau of Alcohol, Tobacco, Firearms and Explosives. Private owners wishing
to purchase an NFA item must obtain approval from the ATF, obtain a
signature from the Chief Law Enforcement Officer who is the county sheriff or
city or town chief of police, 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. The request to transfer ownership of an NFA item is
made on an ATF Form 4. Many times law enforcement officers will not sign the
NFA documents. There have been several unfavorable lawsuits where plaintiffs
have been denied NFA approval for a transfer. These lawsuit include: Lomont
v. O’Neill, Westfall v. Miller, and Steele v. National Branch. In response,
Tennessee and Alaska have passed state laws which require the CLEO to execute
the NFA documents. NFA items may also be transferred to
corporations. When the paperwork to request transfer of an NFA item is
initiated by an officer of a corporation, a signature from local law
enforcement is not required, and fingerprint cards and photographs do not
need to be submitted with the transfer request. Therefore, an individual who
lives in a location where the chief law enforcement officer will not sign a
transfer form can still own an NFA item if he or she owns a corporation. This
method has downsides, since it is the corporation that owns the firearm. Thus,
if the corporation ever dissolves, it must transfer its NFA to the owners.
This event would be considered a new transfer and would be subject to a new
transfer tax. The tax for privately manufacturing any
NFA firearm is $200. Transferring requires a $200 tax for all NFA except
AOW’s, for which the transfer tax is $5. 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 can manufacture NFA firearms but they pay a larger
annual tax which ranges from $500 to $1000 to cover manufacturing.
A Destructive Device manufacturing license or Type-10 FFL holder can
manufacture destructive devices making-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 Special Occupational Tax Stamp or SOT, 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. 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, trunnions, and other “combination of parts” registered as
machineguns before the aforementioned date are often worth nearly as much as a
full registered machine gun. For instance, as of September 2008, a
transferable M16 rifle costs approximately $11,000 to $18,000, while
a transferable “lightning-link” for the AR-15 can sell for $8,000 to $10,000.
New manufacture M-16s sell to law enforcement and the military for around
$600 to $1000. Upon the request of any ATF agent or
investigator, or the Attorney General, the registered owner must provide proof
of registration of the firearm. 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 the 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. The 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. 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 firearms without
having registered or paid a Special Occupational Tax; 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. 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. 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, under the general tax evasion statute. For an individual,
the felony fine of $100,000 for tax evasion could be increased to $250,000.
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. However, the
prohibited person can still be charged under the Gun Control Act of 1968 for
being a prohibited person in possession of a firearm.
The Atomic Energy Act of 1954 was amended in 2005 and includes a provision
to allow Nuclear Regulatory Commission licensees and authorized contractors to
possess machine guns for the purpose of providing security.
The market for NFA items Importation of NFA firearms was banned
by the 1968 Gun Control Act which implemented a “sporting” clause. Only
firearms judged by ATF to have feasible sporting applications can be imported
for civilian use. Licensed manufacturers of NFA firearms may still, with the
proper paperwork, import foreign NFA firearms for research and development
purposes, or for government use. The domestic manufacture of new machine
guns that civilians could purchase was effectively banned by language in the
Firearm Owners Protection Act of 1986. The language was added in an amendment
from William J. Hughes and referred to as the Hughes Amendment. Machine guns
legally registered prior to the date of enactment 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 $3,500. 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 under Form 4. Suppressors and
Short Barreled Rifles are generally the most popular NFA firearms among
civilians, followed by Short Barrel Shotguns, Destructive Devices, and “Any
Other Weapons”. While most NFA firearms are bought from manufacturers and
transferred to civilians through a dealer, many are made by the civilians
themselves after filing a Form 1 and paying the $200 manufacturing tax. In
some cases the manufacture is simple, and sometimes quite complex.
NFA Trust A NFA Trust is a legal trust that is
used in the United States to register and own NFA firearms. A NFA trust allows
prospective purchasers of NFA items to avoid some of the federal transfer
requirements that would otherwise be imposed on an individual.
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. 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 United States Supreme Court. No brief was filed on
behalf of the defendants, and the defendants themselves did not appear
before the Supreme Court. Miller himself had been murdered one month prior to the
Supreme Court’s decision. No evidence that such a firearm was “ordinary
military equipment” had been presented at the trial court, although two Supreme
Court justices at the time had been United States Army officers during World
War I and may have had personal knowledge of the use of such weapons in
combat. The Supreme Court indicated it could not take judicial notice of such a
contention. The Supreme Court reversed the District
Court and held that the NFA provision was not violative of the Second
Amendment’s restriction and therefore was not unconstitutional.
Subsequent rulings have been allowed to stand, indicating that short-barreled
shotguns are generally recognized as ordinary military equipment if briefs
are filed, describing use of short-barreled shotguns in specialized
military units.=Uncertainty after Miller and after
passage of Montana House Bill 246=The scope of the application of the Act
to privately constructed firearms or devices is uncertain. Such items would
normally be regulated under the Act’s provisions, but are intended for private
ownership only and not for sale. As the Act’s application is derived from the
federal legislature’s Constitutionally enumerated power of regulation over
interstate commerce, it is unclear how privately constructed firearms or
devices built solely for personal possession are affected by the Act. It
would seem they are regulated under the Supreme Court’s interpretation of
Wickard v. Filburn which establishes that even activities that occur solely
intrastate could have such a substantial effect upon interstate commerce that
failure to regulate such commerce would defeat Congress’s power to regulate
interstate commerce. In the landmark 1995 case of United
States v. Lopez, the first decision in six decades to invalidate a federal
statute on the grounds that it exceeded the power of the United States Congress
under the Commerce Clause of the United States Constitution, the Supreme Court
described Wickard v. Filburn as “perhaps the most far reaching example of
Commerce Clause authority over intrastate commerce”. The Supreme Court
majority that decided the 2005 case Gonzales v. Raich relied heavily on
Filburn in upholding the power of the federal government to prosecute
individuals who grow their own medicinal marijuana pursuant to state law. In
Raich, the court held that, as with the home grown wheat at issue in Filburn,
home grown marijuana is a legitimate subject of federal regulation because it
competes with marijuana that moves in interstate commerce. As the Court
explained in Gonzalez: Wickard thus establishes that Congress
can regulate purely intrastate activity that is not itself “commercial,” in that
it is not produced for sale, if it concludes that failure to regulate that
class of activity would undercut the regulation of the interstate market in
that commodity. Montana House Bill 246, the Montana
Firearms Freedom Act, was signed into law by Governor Brian Schweitzer on
April 15, 2009, and became effective October 1, 2009. This legislation
declares that certain firearms and firearms accessories manufactured, sold,
and kept within the state of Montana are exempt from federal firearms laws, since
they cannot be regulated as interstate commerce. However, this law does not
apply to a firearm that cannot be carried and used by one person, a
firearm that has a bore diameter greater than 1 ½ inches and uses smokeless
powder, ammunition that uses exploding projectiles or fully automatic firearms.
While it is likely to face a court challenge, this Montana law would put
firearms accessories such as suppressors actually made in Montana, marked “Made
in Montana”, and sold only to Montana citizens outside federal jurisdiction
and not subject to the $200 federal transfer tax.
As of April 2013, similar laws had been enacted by Kansas, Tennessee, Wyoming,
South Dakota, Utah, Arizona, Idaho and Alaska and introduced in most other
states. See also
Firearm case law in the United States Gun law in the United States
Gun politics in the United States Uniform Firearms Act
Notes External links
ATF’s National Firearms Act Handbook

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